Drunk driving/DWI/DUI

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A silver lining in the District of Columbia’s breathalyzer debacle  is that it may further convince judges and jurors that breathalyzers amount to junk science, or else that their results are highly unreliable, due to unreliability of the machinery, and by the fallibility and sometimes carlessness of humans that maintain and operate them. 

I have worked for several years with two Intoxilyzer and Intoximeter experts who confirm that blood testing is more reliable than breath testing to accurately determine one’s blood alcohol level at the time of testing. Of course, the blood alcohol level at the time of driving could be lower or higher than at the time of testing, depending on whether the alcohol absorption process is continuing upward, or if the alcohol dissipation process has already begun.

Here are memos –- no doubt heavily reviewed and vetted in advance by D.C. government lawyers to reduce legal liability for what is said, and to minimize legal liability for not saying enough -- from D.C. Deputy Attorney General Robert J. Hildum  (June 4, 2010) and from Alexander Pope and Darryl Priestly of the D.C. police (April 1, 2010, and not an April Fool's joke). Thanks to a colleague for forwarding me these documents, which were also provided to me recently by a D.C. assistant attorney general.  

By Jon Katz, a criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com.

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Recently, I posted a lawyer listserv message asking about Maryland-licensed alcohol education programs that will not do a knee-jerk at a 0.15 breathalyzer test result to draw the line between a six-session (two hours per session) and twenty-six-session alcohol education program. When a colleague responded that some judges may ask some direct questions about why a program lists the defendant as just a social drinker rather than problem drinker with a 0.15 result, I replied:

Some of my Maryland-resident clients have pending Virginia DWI cases. In Virginia, a DWI conviction requires completing the VASAP program (which usually is just around 12-16 weekly sessions for those without prior convictions), which will ordinarily give full credit to any private state-licensed program that my client goes to.

Judges in Virginia have not questioned social drinker assessments from the private programs my clients attend. They let VASAP assure the program is completed.

Moreover, it is B.S. for the 0.15 to be treated as gospel by the alcohol programs when we know how unreliable is the Intoximeter, and how the BAC at the time of the blow can be higher than the BAC at the time of driving.

By the way, recently a clinician at a state-licensed Maryland alcohol education program faxed me a March 2000 Maryland Health Department memo saying "Offenders who have a BAC of .15 or above, or refused the Breathalyzer, should be assessed as a 'Problem Drinker'". The foregoing language says "should" assess, not "must assess" as a problem drinker. What biased language the memo has about "offender", which is bad enough for convicted people but worse for those not even adjudicated guilty yet.

The memo says nothing about the reliability of the Intoximeter. It's all B.S. at best. The current DWI enforcement system and scheme is a shameful fraud.

Last August, I addressed merger of DUI and DWI per se.

As an update, last January, Maryland's intermediate appellate court ruled that "when a defendant is convicted of both DUI and DUI per se, arising out of the same act of driving, the lesser sentence, in this case the one for DUI per se, merges into the greater sentence, in this case the sentence for DUI, under the rule of lenity." Washington v. Maryland, 2010 Md. App. LEXIS 11 (Md. App. Jan. 28, 2010).

On March 3, I blogged about attacking horizontal gaze nystagmus testimony.

Thanks to JR for commenting to that blog entry with a link to Illinois v. McKown (IL, Feb. 19, 2010) which in part says:

"A properly trained police officer who performed the HGN field test in accordance with proper procedures may give expert testimony regarding the results of the test. We also agree with the trial court’s conclusion that a testifying officer may use the HGN test results as a part of the basis for his opinion that the defendant was under the influence and impaired."

McKown had so many experts on each side as to make one wonder whether the parties somehow expected that the case would generate important appellate caselaw. Among the experts testifying for the defense was ophthalmologist Joseph Citron, MD, JD. Dr. Citron apparently is certified in field sobriety tests and available to testify about FST's beyond the horizontal gaze nystagmus. He is in Minnesota at 404-261-2911, 404-386-1100, or 404-784-5297. e-mail: JoeCitron@aol.com. Lawyer Darren Kavinoky lists him here.

McKown reversed and ordered a new trial, for the prosecution's failure or inability to lay a proper foundation to admit horizontal gaze nystagmus testimony.

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Breathalyzer tests are junk science. At best, breathalyzer machines should only be used to determine whether to obtain a more thorough blood alcohol screening, through a blood test (or a balloon test, according to one forensic chemist whom I respect very much).  This is imperfectly akin to a drug dipstick's positive result not being sufficient, and instead needing a lab test of the urine sample at that point.

Underlining the breathalyzer junk science is the Washington, D.C., police chief's revelation this past Friday that eight of ten Intoxilyzer 5000 machines in the city had been delivering inaccurate results between October 2008 and February 2010.

What does this mean for people already convicted for DWI from arrests during the October 2008 through February 2010 timeframe? It means they should contact their lawyers immediately about filing for relief from the court from this blunderous situation. Jon Katz.

Forensic toxicologists and forensic chemists are common experts for challenging the accuracy and reliability of breathalyzer tests. Sometimes an engineer should be consulted for providing analysis and testimony about the breathalyzer, including testing the breathalyzer with such equipment as an oscilloscope.

One engineer who does such work is Thomas E. Workman, Jr. His related article is "Massachusetts Breath Testing for Alchol: A Computer Science Perspective." 8 J. High Tech. L. 209 (2008).

NOTE: This blogposting is being re-uploaded, after some WYSYWIG problems kept delivering faulty formatting.

The jurisdictions where I practice criminalize both drunk driving (DUI) and driving with a blood alcohol content over 0.08 (DWI). If a defendant is convicted of both, the defense lawyer should be ready to ask the judge to merge the two convictions, or, in the alternative, the two sentences. 

In Virginia, it is already understood that only one conviction can arise from a guilty finding for drunk driving and driving with a 0.08 BAC. U.S. v. Hornada, at n. 1 (E.D. Va., Sept. 26, 1997) (Poretz, M.J.) (unpub'd). 

In Maryland?s, the intermediate appellate court recently ruled that DUI and DWI do not merge as convictions, but do merge for sentencing. Turner v. State, 181 Md. App. 477 (2008), 

In the District of Columbia, I have not yet had a client convicted both for DUI and DWI, so have not needed to argue merger there. However, the reasoning of the foregoing Maryland Turner opinion should support merging a DUI and DWI sentence, at the very least. 

In federal court, the DUI cases with which I deal most frequently are for prosecutions under the U.S. National Park regulations, since the National Parks include the George Washington Parkway, Baltimore WashingtonParkway, and the Clara Barton Parkway. A particularly strong argument can be made in the Eastern District of Virginia federal court for merging a DUI and DWI conviction under Park Police regulations, based on the following opinions. The Park Police regulations criminalize DUI under 36 C.F.R § 4.23(a)(1), and DWI under 36 C.F.R. § 4.23(a)(2). E.D. Va. Magistrate Judge Poretz (Ret.)  and E.D. Va. Judge Cacheris already have accepted that convictions under the National Park regulations for DUI and DWI merge. U.S. v. Hornada, U.S. Dist. Ct. No. TVN No. P2125951-54; U.S. v. Graham, 2006 U.S. Dist. LEXIS 40622 (E.D. Va. June 19, 2006) (unpub'd) (approvingly citing U.S. v. Hornada), aff'd, 234 Fed. Appx. 136, 2007 U.S. App. LEXIS 17573 (4th Cir. Va. 2007) (unpub'd). 

U.S. v. Hornada carries even greater persuasiveness in the Eastern District of Virginia based on footnote 1, which says that principles of comity encourage such a merger result, where Virginia state DWI law would not allow separate offenses for DWI and DWI per se. Hornada at n. 1. Jon Katz

ADDENDUM: Thanks to a fellow criminal defense attorney for forwarding me the foregoing Hornada opinion. It is unfortunate that per se DWI laws exist in the first place to even be having the foregoing discussion.

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In all jurisdictions where I practice law, guidelines call for checking for an empty mouth for at least twenty minutes before administering breath tests for blood alcohol levels, because doing otherwise risks getting an inaccurate result from an already inaccurate procedure.

Enter Brenna Guy, who was arrested for suspicion of violating Indiana's drinking and driving laws and asked to take a breathalyzer test. She agreed to take the test, which was administered without the police asking her first to remove her easily removable tongue stud, even though Indiana law has the following rule requiring no mouth foreign substances for at least twenty minutes before taking the breathalyzer test:

^"The following is the approved method to conduct a B.A.C. Datamaster with keyboard test for alcohol intoxication: (1) The person to be tested must have had nothing to eat or drink, must not  [*838]  have put any foreign substance in his or her mouth or respiratory tract, and must not smoke within twenty (20) minutes prior to the time a breath sample is taken." Guy v. Indiana, 805 N.E.2d 835, 837-38 (Ind. Ct. App. 2004).

Praised be Indiana's Court of Appeals three-judge panel, which ruled 2-1 that the breath test results should have been barred from evidence. The court reasoned that the tongue stud was an easily removable foreign substance that remained in Guy's mouth right through the time of the breath test. The court left for another day what to do with such items as non-removable mercury tooth fillings, crowns, caps, and any other foreign substances that might interfere with the accuracy of the breath test. Guy v. Indiana, 805 N.E.2d 835.

The bottom line is that breathalyzers spew inaccurate information all the time. Blood tests are more accurate if properly administered and analyzed, but are more expensive in terms of administering them and in terms of having the people who drew the blood and examined the blood come to court as witnesses. Foreign substances can make breath tests even more inaccurate. It is important for criminal defense lawyers to know about every foreign substance that was in the defendant's mouth, right down to tongue rings, mercury fillings, and tooth caps. Jon Katz  

ADDENDUM: Thanks to a fellow listserv member for posting on the foregoing Guy case.

ADDENDUM II: Thanks to Diane for her comment below. Shepard's did not show the Indiana Supreme Court's reversal of the foregoing Court of Appeals decision, perhaps because the Supreme Court opinion says "[w]e affirm the trial court's denial of the motion to suppress," without saying that the intermediate appellate opinion is being reversed. Here is the Shepard's result, in pertinent part:

Guy v. State, 805 N.E.2d 835, 2004 Ind. App. LEXIS 568 (Ind. Ct. App. 2004)

SHEPARD'S SUMMARY

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Unrestricted Shepard's Summary Subsequent appellate history contains possible negative analysis. Citing References: Cautionary Analyses: Distinguished (1) Other Sources: Statutes (1) LexisNexis Headnotes: HN3 (1), HN5 (3) Show full text of headnotes

PRIOR HISTORY ( 0 citing references ) Hide Prior History

			(CITATION YOU ENTERED):
			Guy v. State, 805 N.E.2d 835, 2004 Ind. App. LEXIS 568 (Ind. Ct. App. 2004)

SUBSEQUENT APPELLATE HISTORY ( 2 citing references ) Hide Subsequent Appellate History

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	1.		Transfer granted by:
			Guy v. State, 822 N.E.2d 969, 2004 Ind. LEXIS 644 (Ind. 2004)

	2.		Subsequent appeal at:
			Guy v. State, 823 N.E.2d 274, 2005 Ind. LEXIS 169 (Ind. 2005)