The Breathalyzer Tyranny

[Grizalltheway]

I have heard about this being done….whether it is a true story or if it would fly, I dunno…

If you are drunk and are pulled over, IMMEDIATELY take the keys out of the ignition and slam back a bottle of liquor (grain alcohol is preferred, but some 151 or JD will do too) before the cop even approaches your car. Enough that anyone weighing less than a manatee would show a .08 in just a matter of minutes. So instead of being charged with a DUI, you’ll only get charged with a DIP. Of course, don't get back in your car (assuming you aren't arrested for being drunk in public). Have it towed. A DIP and car tow will still be cheaper for you than a DUI!

That's the most retarded advice I've ever heard.

Yeah, I'm also not seeing how chugging grain alcohol will suddenly reduce your BAC. Fokkin JMU grads.




Excluding DirtyJoo, but he's the exception, not the rule.

[JohnStOnge]

Yesterday someone suggested refusing the test. From http://www.1800duilaws.com/states/la.asp:

"Drunk driving law in Louisiana requires someone arrested for DWI or DUI to submit to a test of their blood, breath or urine if requested by a peace officer. Refusal to take the chemical test following a drinking and driving arrest shall be admissible in court as consciousness of guilt, and carries with it additional driver's license consequences and penalties. If you have refused to submit to a chemical test, your license may be suspended for a period of six months for a first refusal, or for 545 days if you have previously refused to submit to such a test."

So there's no right against self-incrimination involved here.

[JohnStOnge]

Here's another thing: In Louisiana, below 0.05 means a presumption that you're not impaired. Above 0.08 means a presumption that you ARE impaired. In between, it's completely a matter of opinion on the part of 1) the arresting officer and (if it's first offense) 2) a judge. That's because there's no option for a jury trial on first offense DWI.

Let's use the BAC estimator at http://www.bloodalcoholcalculator.org/ for a scenario. A 150 pound woman stops by a crawfish boil in Louisiana and has a couple of beers over an hour. Her true BAC is 0.044. But, since a Breathalyzer has a margin of error of 0.01, it's not beyond the realm of reasonable probability that she "blows" a 0.054. At that point, it's she's at the mercy of a police officer. Later she is at the mercy of a judge. And neither a police officer nor a judge is really qualified to determine the extent to which someone is impaired; especially when they have no baseline as to what that person's capabilities normally are.

Sure, there are times when anybody can tell that somebody's impaired. But when you're talking about a BAC in the 0.05 to 0.08 range you're not going to be talking about that.

It's a witch hunt, people. It's absolutely absurd in the first place that this particular factor in risk is being treated so much differently than any other factor and it's also a horror story in terms of the imprecision, the reliance on people who are unqualified to reach conclusions with respect to the issue at hand, etc.

[CID1990]

NOW we are seeing some bad advice.

The llimp and floppy thing is going to kill you with a jury in a DUI when they see it on video.

The chug a bottle idea is going to get you for the same reason.

Like I said before, the BAC is just one piece of the puzzle. It carries no more weight than the behavior of the driver in determining probable cause. Plus, in my experience juries usually come down with both feet when the defendant pulls shenanigans like this. As I said before, most of my DUI convictions were in cases where the defendant refused the BAC. In other words, I had to rely on other evidence including officer observation, on scene video, statements of the defendant, etc. The BAC is important, but it is not necessary for conviction.

Also, each state is different, but there is no "charge" for refusing to blow the Datamaster. In most states that I am familiar with, the suspension of your license comes from what is called "implied consent." When you get your driver's license from the DMV and sign on the dotted line, you are consenting to breath tests when you are suspected of DUI. So, when you refuse the BAC, you have broken the contract and therefore the state revokes your license for a predetermined amount of time. If driving were a right, then this would be different, but the states can pretty much do what they want when it comes to driver's licenses.

As for witch hunts, well, I never got paid extra for DUI convictions and I am pretty sure that judges don't either, so I'm not sure where the motivation for a "witch hunt" would come from. That being said, MADD is pretty Nazi-fied. When an officer uses any kind of discretion in a DUI case and cuts somebody some slack, he or she runs the risk of disciplinary action if MADD finds out about it and raises hell. I have seen a guy fired over it. Plus, if you pull someone over who you think might be borderline and let them go, and then a little later they crash and kill somebody.... say goodbye to your house, your car, everything you own.

My advice? Don't drive after you have had a few. In this day and age it is just stupid. There are cellphones out there, and MADD (along with others) loves to dime out people for the smallest weave on the highway.

[CID1990]

Here's another thing: In Louisiana, below 0.05 means a presumption that you're not impaired. Above 0.08 means a presumption that you ARE impaired. In between, it's completely a matter of opinion on the part of 1) the arresting officer and (if it's first offense) 2) a judge. That's because there's no option for a jury trial on first offense DWI.

Let's use the BAC estimator at http://www.bloodalcoholcalculator.org/ for a scenario. A 150 pound woman stops by a crawfish boil in Louisiana and has a couple of beers over an hour. Her true BAC is 0.044. But, since a Breathalyzer has a margin of error of 0.01, it's not beyond the realm of reasonable probability that she "blows" a 0.054. At that point, it's she's at the mercy of a police officer. Later she is at the mercy of a judge. And neither a police officer nor a judge is really qualified to determine the extent to which someone is impaired; especially when they have no baseline as to what that person's capabilities normally are.

Sure, there are times when anybody can tell that somebody's impaired. But when you're talking about a BAC in the 0.05 to 0.08 range you're not going to be talking about that.

It's a witch hunt, people. It's absolutely absurd in the first place that this particular factor in risk is being treated so much differently than any other factor and it's also a horror story in terms of the imprecision, the reliance on people who are unqualified to reach conclusions with respect to the issue at hand, etc.

Why wouldn't people with the most experience in dealing with drunk driving be somehow not qualified? Did you know that most traffic cops who have been doing DUI for more than a couple years can estimate your BAC down to about a range of 0.02 without using a breath test? It is not evidentiary, but it works. I used to show rookies all the time. I'd run a horizontal gaze nystagmus test on the defendant, and the later compare it with the BAC. I was within 0.01 every time, and usually I was dead on.

YOu are also forgetting that prior to the breath test, there are several other factors that bring an intoxicated driver into an encounter with the police. Cops don't just pull people over at random. In fact, a lot of departments are going to using the chase video before the actual stop. Generally speaking the best evidence for DUI is generated before the suspect vehicle is even stopped.

I can't get past the fact that it sounds like you are implying that experienced police officers are somehow not experts at what they do.

What do you do for a living?

[JohnStOnge]

Why wouldn't people with the most experience in dealing with drunk driving be somehow not qualified? Did you know that most traffic cops who have been doing DUI for more than a couple years can estimate your BAC down to about a range of 0.02 without using a breath test? It is not evidentiary, but it works. I used to show rookies all the time. I'd run a horizontal gaze nystagmus test on the defendant, and the later compare it with the BAC. I was within 0.01 every time, and usually I was dead on.

YOu are also forgetting that prior to the breath test, there are several other factors that bring an intoxicated driver into an encounter with the police. Cops don't just pull people over at random. In fact, a lot of departments are going to using the chase video before the actual stop. Generally speaking the best evidence for DUI is generated before the suspect vehicle is even stopped.

I can't get past the fact that it sounds like you are implying that experienced police officers are somehow not experts at what they do.

What do you do for a living?

Police are not medical professionals. To truely judge whether or not somebody is impaired you would have to have specific measurements pertaining to things like reaction time, balance, coordination, etc. And you would have to be able to compare those measurements to "baseline" measurements for that individual. And you'd have to know what you're doing.

Police don't. That's not what they are.

Again: Sure, there are cases in which anybody can see that it's obvious that someone is impaired. But the law allows for very borderline cases. In Louisiana it allows for having police officers determine whether or not somebody they've never even seen before is impaired when they have a BAC of 0.05. I'm sorry, but they really aren't qualified to do that. And even if they were simple subjective observation and something as subjective as a sobriety test isn't going to do it.

I don't like to talk about what I do for a living for my own reasons. But I'll go as far as saying that it has to do with risk assessment, modeling, statistics, etc.

And where to you get that thing about "most cops" being able to estimate BAC down to a range of about 0.02 without using a breath test? Did some cop tell you that?

I'm not talking about a situation where they control the Breathalyzer and do things like make the subject breath out more than they should to get an accurate result so they can maximize the odds of getting what they expect. I'm talking about something like an experiment where subjects are given alcohol, their blood alcohol is directly measured, then cops are allowed to observe behavior then estimate the level.

[JohnStOnge]

I can't get past the fact that it sounds like you are implying that experienced police officers are somehow not experts at what they do.

They are not experts at assessing human impairment level. I'll give you an example involving the instance that has me particularly inflamed right now: The cop stopped a person who has neuromuscular problems due to a prental viral infection. The guy has extremely distorted speech, balance problems, and coordination problems. So how is that cop going to judge the extent to which that individual is imparied by alcohol? He can't. He'd never seen the guy before and therefore had no frame of reference. And he wasn't qualified to judge human impairment level even if he had. Then he took the guy back to the police station and they made him do the thing that biases the BAC estimate upwards. Even after that they barely got him to over 0.08; which means that even if they hadn't intentionally biased the test the result wouldn't have shown his actual BAC was over 0.08.

So he saw the guy go out of his lane onto the shoulder once. You don't think that happens to people who aren't too imparied to drive? Have you ever gone onto the shoulder a little when you're not too impaired to drive?

Don't tell me they don't stop people who aren't impaired or when there's really not that much of a reason to do so. It's happened to people I know. Like having a perfectly sober person run over some of those lane reflectors and having some cop stop her then tell her how he calls the reflectors "drunk bumps." Heck, I've had it happen to me, come to think of it. I was leaving on a long trip and was looking for something in my car and kind of went out of my lane a little. Next thing I know some cop's pulled me over and is asking me a bunch of questions (including if I'd been drinking), wanting to look in my trunk, etc. Please.

A lot of people think cops are wonderful until they run into the reality of dealing with them when they've really done nothing wrong but the cops are convinced that they did. Another thing: They don't like being wrong. Once they decide somebody's done something they're not going to be objective.

[JohnStOnge]

Here's another one: My wife and one of her friends were coming back from going out to eat. They see a bunch of flashing lights ahead so figure there's an accident. They turn around in a driveway to take another route. Next thing they know cops are all over them accusing them of trying to avoid a DUI checkpoint, accusing them of having open containers, etc., because they had some cups of coke in their cupholders. They were treated in a very rude, accusatory way just because they were trying to avoid what they thought was an accident scene. My wife was enraged.

In fact, I'll tell you that my wife has gotten on me int he past because of my attitude towards cops . But over the years she's had some experiences with them that have made her come around to my point of view. She's been treated awfully by cops several times even though she'd done nothing wrong, etc.

[BDKJMU]

I can't get past the fact that it sounds like you are implying that experienced police officers are somehow not experts at what they do.

They are not experts at assessing human impairment level. I'll give you an example involving the instance that has me particularly inflamed right now: The cop stopped a person who has neuromuscular problems due to a prental viral infection. The guy has extremely distorted speech, balance problems, and coordination problems. So how is that cop going to judge the extent to which that individual is imparied by alcohol? He can't. He'd never seen the guy before and therefore had no frame of reference. And he wasn't qualified to judge human impairment level even if he had. Then he took the guy back to the police station and they made him do the thing that biases the BAC estimate upwards. Even after that they barely got him to over 0.08; which means that even if they hadn't intentionally biased the test the result wouldn't have shown his actual BAC was over 0.08.

So he saw the guy go out of his lane onto the shoulder once. You don't think that happens to people who aren't too imparied to drive? Have you ever gone onto the shoulder a little when you're not too impaired to drive?

Don't tell me they don't stop people who aren't impaired or when there's really not that much of a reason to do so. It's happened to people I know. Like having a perfectly sober person run over some of those lane reflectors and having some cop stop her then tell her how he calls the reflectors "drunk bumps." Heck, I've had it happen to me, come to think of it. I was leaving on a long trip and was looking for something in my car and kind of went out of my lane a little. Next thing I know some cop's pulled me over and is asking me a bunch of questions (including if I'd been drinking), wanting to look in my trunk, etc. Please.

A lot of people think cops are wonderful until they run into the reality of dealing with them when they've really done nothing wrong but the cops are convinced that they did. Another thing: They don't like being wrong. Once they decide somebody's done something they're not going to be objective.

So what your saying is that a person with extremely distorted speech, balance problems, and coordination problems due to a prental viral infection, and on top of that had a few drinks, was out driving?

Sounds like a person with a medical condition like shouldn't be driving even with zero alcohol in his body.

[CID1990]

They are not experts at assessing human impairment level. I'll give you an example involving the instance that has me particularly inflamed right now: The cop stopped a person who has neuromuscular problems due to a prental viral infection. The guy has extremely distorted speech, balance problems, and coordination problems. So how is that cop going to judge the extent to which that individual is imparied by alcohol? He can't. He'd never seen the guy before and therefore had no frame of reference. And he wasn't qualified to judge human impairment level even if he had. Then he took the guy back to the police station and they made him do the thing that biases the BAC estimate upwards. Even after that they barely got him to over 0.08; which means that even if they hadn't intentionally biased the test the result wouldn't have shown his actual BAC was over 0.08.

So he saw the guy go out of his lane onto the shoulder once. You don't think that happens to people who aren't too imparied to drive? Have you ever gone onto the shoulder a little when you're not too impaired to drive?

Don't tell me they don't stop people who aren't impaired or when there's really not that much of a reason to do so. It's happened to people I know. Like having a perfectly sober person run over some of those lane reflectors and having some cop stop her then tell her how he calls the reflectors "drunk bumps." Heck, I've had it happen to me, come to think of it. I was leaving on a long trip and was looking for something in my car and kind of went out of my lane a little. Next thing I know some cop's pulled me over and is asking me a bunch of questions (including if I'd been drinking), wanting to look in my trunk, etc. Please.

A lot of people think cops are wonderful until they run into the reality of dealing with them when they've really done nothing wrong but the cops are convinced that they did. Another thing: They don't like being wrong. Once they decide somebody's done something they're not going to be objective.

So what your saying is that a person with extremely distorted speech, balance problems, and coordination problems due to a prental viral infection, and on top of that had a few drinks, was out driving?

Sounds like a person with a medical condition like shouldn't be driving even with zero alcohol in his body.

You beat me to it, Bubba. I was thinking, "WTF?" while I was reading. I also liked the broad brush that he used to paint all cops. I figured that was his basic problem and if I tweaked him enough I'd coax out one of those blanket statements.

You know what John? I'll just let you go about your business on this one. You have either not read what I have posted, or it has been over your head.

Some cop did not tell me about the nystagmus test. As I said before, I was a cop for 17 years. I can perform a horizontal gaze nystagmus test on you, and if your BAC is above 0.04 I can tell you what it is within 0.02 every time, and about 80% of the time I can tell you exactly what it is. Because measuring this physiological effect in a manner that could be documented is prohibitively expensive, it is not used in place of the BAC.

If you don't believe me, go ask a doctor. (Since it seems difficult for you to believe that someone other than a doctor might actually know about how alcohol has an effect on motor skills and how they have a precise effect on the motor neurons in the eyes.)

Good luck finding a doctor around the corner who is experienced enough with the method, though. Most of them will defer to a cop who has been doing it for years. Just like the courts do.

[Appaholic]

It's a witch hunt, people. It's absolutely absurd in the first place that this particular factor in risk is being treated so much differently than any other factor and it's also a horror story in terms of the imprecision, the reliance on people who are unqualified to reach conclusions with respect to the issue at hand, etc.

YOu are also forgetting that prior to the breath test, there are several other factors that bring an intoxicated driver into an encounter with the police. Cops don't just pull people over at random. In fact, a lot of departments are going to using the chase video before the actual stop. Generally speaking the best evidence for DUI is generated before the suspect vehicle is even stopped.

Cid, your points would all be 100% spot-on if but for one thing......the DUI checkpoints ("Show me your papers"). IMO, they are a huge intrusion upon an individual's right to move freely about his/her business. Like John's wife, I have chosen to turn around to avoid them while sober as I do not want the delay on principle & I have been chased down & harassed for essentially changing my chosen route from point A to point B. DUI, License & Seatbelt checkpoints are forcing people to prove their innocence.

[CID1990]

YOu are also forgetting that prior to the breath test, there are several other factors that bring an intoxicated driver into an encounter with the police. Cops don't just pull people over at random. In fact, a lot of departments are going to using the chase video before the actual stop. Generally speaking the best evidence for DUI is generated before the suspect vehicle is even stopped.

Cid, your points would all be 100% spot-on if but for one thing......the DUI checkpoints ("Show me your papers"). IMO, they are a huge intrusion upon an individual's right to move freely about his/her business. Like John's wife, I have chosen to turn around to avoid them while sober as I do not want the delay on principle & I have been chased down & harassed for essentially changing my chosen route from point A to point B. DUI, License & Seatbelt checkpoints are forcing people to prove their innocence.

Yeah I never cared much for checkpoints, but because the state owns the road surfaces, and driving isn't a right.... you get the picture. They are perfectly legal, but the libertarian in me kind of scoffs at the whole notion. Personally I think that people ought to be able to drive down the road in a car they built themselves with no driver's license. Or ride a mule down the interstate.

There's been a lot of Supreme Court scrutiny over checkpoints (the new PC term is "Safety Checks"). The bottom line is that as long as driving is not considered to be a right, and the roadways are built with public dollars, there are going to be checkpoints. Plus, most states have implied consent written into the acceptance agreements in their driver's licenses. Everyone should read the fine print when they sign for their licenses. Of course people aren't going to say "I don't want the license, then." but it makes for some interesting reading.

As for turning around, the high court has already held that avoiding checkpoints qualifies as suspicious activity, so you run the risk of creating additional inconvenience for yourself in those situations. I admit I have done it too, though. Also, be sure to check the state laws governing checkpoints, because in some states, avoiding a checkpoint is actually an offense.

[OSBF]

can we just take up a collection, give it to ralphie so he can pay his bills, and hope he goes away?

[JohnStOnge]

So what your saying is that a person with extremely distorted speech, balance problems, and coordination problems due to a prental viral infection, and on top of that had a few drinks, was out driving?

Sounds like a person with a medical condition like shouldn't be driving even with zero alcohol in his body.

This person has been driving for five years without problems. It is not a situation in which you would notice his balance and coordination problems in day to day life. They don't jump out at you under normal circumstances. But he cannot stand on one foot and has difficulty in doing things like put one foot in front of another like is done in a field sobriety test (at least here) and walk a straight line. The point is, there is NO way a police officer who has never seen him before can judge the extent to which alcohol has impaired him in a situation in which the blood alcohol level was where it was. Remember, the police officer made him get everey bit of air out of his lungs; which biases the test result. His Breathalyzer estimate was between 0.08 and 0.09. Read again what Professor of Physiology, Biophysics and Medicine Michael Hlastala said about doing what the police officer did in this case:

"The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC. Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. The last part of the breath can be over 50% above the alcohol level….Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%."

So the central tendency of an estimate that was between 0.08 and 0.09 could've been biased upwards by as much as 0.05.

[JohnStOnge]

Yeah I never cared much for checkpoints, but because the state owns the road surfaces, and driving isn't a right.... you get the picture. They are perfectly legal, but the libertarian in me kind of scoffs at the whole notion. Personally I think that people ought to be able to drive down the road in a car they built themselves with no driver's license. Or ride a mule down the interstate.

I don't know if I'd go as far as driving a mule down the interstate but I do think driving should be considered a right. It's amazing to me that many if not most people want something like health care to be considered a right but have no problem with this idea that driving is a privilege. To me a right is something you have that nobody should be able to take away from you without cause and if somebody else has to give it to you it's not a right. With health care, if you say it's a right, that means that if necessary someone else has to be forced to give it to you. Driving, to me, is much more in line with a right is.

Sure, the government builds the roads and other transportation infrastructure. But the government also builds sidewalks. Does that mean that walking is not a right? Do you think the society should be able to demand that we purchase a "walking license" before we're allowed to walk on public property? Another one: Government plays a big role maintaining communications infrastructure. Does that mean that we don't have a right to free speech if we use that infrastructure? This thing about it being a privilege is just an excuse to allow the society to do the things it does to regulate it.

[JohnStOnge]

As I said before, I was a cop for 17 years. I can perform a horizontal gaze nystagmus test on you, and if your BAC is above 0.04 I can tell you what it is within 0.02 every time, and about 80% of the time I can tell you exactly what it is. Because measuring this physiological effect in a manner that could be documented is prohibitively expensive, it is not used in place of the BAC.

I will believe that when we can put you in an experimental situation, dose people with alcohol, collect a blood sample in each case for direct measurement of the BAC, allow you to assess the subject, then take another blood sample immediately after your assessment to take another direct measurement. In fact we'd actually have to collect a number of before and after blood samples from both ateries and veins in each case because we'd have to get an idea as to the variation in measurements as well as between veins and artieries to get a true, unbiased estimate of what the overall BAC is. I mean that in the sense of an estimate based on variation between direct measurements taken and analyzed by people who have no "dog in the fight," not in the sense (as with a breath machine in actual practice) of not having a direct measurement to begin with but instead having one estimate of BAC based on concentration of gas in the lungs under circumstances where an arresting officer or one of his fellow officers operate the device and are in position to bias the results.

All you're doing in my eyes by making claims like that is bolstering my opinion that there is a serious problem. You are a former police officer who actually believes you know what somebody's BAC is without having to measure or even estimate it with some device. Here is a comment on the "accuracy" of applying a series of field sobriety tests including the eye test you reference from http://www.horizontalgazenystagmus.com/ ... tests.html :

"These simple tests are only to give an officer just cause – called ‘probable cause’ – to arrest the driver on suspicion of DUI. On average, these tests range from 65-80 percent reliable in establishing that a driver is in fact under the influence of drugs or alcohol."

According to that, even if you take the best case (80%), that means that officers are going to be wrong 20% of the time when they conclude that someone is under the influence of drugs and/or alcohol. And that's part of the problem. People like you conclude in their own minds that they already know someone is under the influence and often...and I think almost always...bias the process from that point on.

Back to something I wrote earlier: A lawyer I talked to about this who was formerly (and recently) a prosecutor with the local DA's office told me that 1) officers will always write that the person they arrested had slurred speech, bloodshot eyes, and a strong smell of alcohol and 2) if they ask you to take a field sobriety test they've already decided that they're going to take you into custody and you are not going to pass. That does not sound to me like an unbiased process based on verifiable measurements.

[JohnStOnge]

Good luck finding a doctor around the corner who is experienced enough with the method, though. Most of them will defer to a cop who has been doing it for years. Just like the courts do.

Yes. Which brings us to a broader issue: The way in which the presumption is that the police officer is telling the truth. So here we are in a country in which a defendant is supposed to be innocent until proven guilty but courts are automatically going to assign more weight to a police officer's testimony than they would to anybody elses. And in this kind of situation they are going to assume a police officer was both accurate in his assessment and also honest about it.

In my opinion a police officer's testimony should carry no more weight than anybody else's does. The idea that police officers are any less likely to lie or distort the truth than anybody else is totally unsubstantiated. It's just an assumption. So an officer is completely free to claim he saw evidence in an eye test then bias the breath test. I also wonder if there are any controls in place to ensure that the police officer can't just falsify the result. Some kind of datalogger that establishes the way in which the machine was operated and automatically records the data in a way that ensures that it can't be tampered with. If not then they can just write whatever they want to write.

[JohnStOnge]

BTW, what I'm talking about in the way in which the system is biased in favor of the government is known as the presumption of regularity. The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.

Now think about that. It flips the idea of "innocent until proven guilty" on its head when what you're talking about what a police officer does in arresting someone and collecting evidence. In my opinion there is no way Courts putting the burden on the defendant to prove that a police officer did not properly discharge his duties. The State should have to prove that he or she DID do that. Otherwise, it's an element of the defendant having to prove his or her innocence rather than a situation in which the State must prove the defendant guilty.

[SeattleGriz]

Not sure if anyone has mentioned this before, but when I got my DUI and had to attend my classes, I got to hear some of the other peoples stories.

Of course I can't verify the accuracy of this guys story, but it did make sense to me. Apparently he drank one beer at home and then went to the store to purchase more and got pulled over for a traffic violation. The cop saw his beer and asked him if he had been drinking. He said yes, because he had one beer, also figuring he was not over .08

The part that screwed this guy was when the police asked him, "At the time we pulled you over, on a scale from 0 to 10, with 0 being completely sober, where were you on that scale?" When the guy said 1, because he figured he couldn't be a zero due to the one beer, he admitted influence right there. He supposedly blew a .03 and still got a DUI.

The moral, answer 0 if asked that question.

[houndawg]

Here's another thing: In Louisiana, below 0.05 means a presumption that you're not impaired. Above 0.08 means a presumption that you ARE impaired. In between, it's completely a matter of opinion on the part of 1) the arresting officer and (if it's first offense) 2) a judge. That's because there's no option for a jury trial on first offense DWI.

Let's use the BAC estimator at http://www.bloodalcoholcalculator.org/ for a scenario. A 150 pound woman stops by a crawfish boil in Louisiana and has a couple of beers over an hour. Her true BAC is 0.044. But, since a Breathalyzer has a margin of error of 0.01, it's not beyond the realm of reasonable probability that she "blows" a 0.054. At that point, it's she's at the mercy of a police officer. Later she is at the mercy of a judge. And neither a police officer nor a judge is really qualified to determine the extent to which someone is impaired; especially when they have no baseline as to what that person's capabilities normally are.

Sure, there are times when anybody can tell that somebody's impaired. But when you're talking about a BAC in the 0.05 to 0.08 range you're not going to be talking about that.

It's a witch hunt, people. It's absolutely absurd in the first place that this particular factor in risk is being treated so much differently than any other factor and it's also a horror story in terms of the imprecision, the reliance on people who are unqualified to reach conclusions with respect to the issue at hand, etc.

Why wouldn't people with the most experience in dealing with drunk driving be somehow not qualified? Did you know that most traffic cops who have been doing DUI for more than a couple years can estimate your BAC down to about a range of 0.02 without using a breath test? It is not evidentiary, but it works. I used to show rookies all the time. I'd run a horizontal gaze nystagmus test on the defendant, and the later compare it with the BAC. I was within 0.01 every time, and usually I was dead on.

YOu are also forgetting that prior to the breath test, there are several other factors that bring an intoxicated driver into an encounter with the police. Cops don't just pull people over at random. In fact, a lot of departments are going to using the chase video before the actual stop. Generally speaking the best evidence for DUI is generated before the suspect vehicle is even stopped.

I can't get past the fact that it sounds like you are implying that experienced police officers are somehow not experts at what they do.

What do you do for a living?

I always enjoy your posts CID, whether I agree with them or not. But you're using that broad brush you accuse John of using when you say cops don't stop people at random. They stop people for no reason all the time, as anyone who has ever owed a VW van knows.

[JohnStOnge]

Since the horizontal gaze nystagmus test was mentioned, I am going to post a quote by Dr. L. F. Dell’Osso, Professor of Neurology at Case Western Reserve University School of Medicine and Director of the Ocular Motor Neurophysiology Laboratory at the Veteran’s Administration Medical Center in Cleveland. It bears upon the idea that a police officer can do something like reliably estimate the BAC of an individual to within 0.02 based on this test. Here it is:

"Using nystagmus as an indicator of alcohol intoxication is an unfortunate choice, since many normal individuals have physiologic end-point nystagmus…Without a neuro-opthalmologist or someone knowledgeable about sophisticated methods of eye movement recordings, it is difficult to determine whether the nystagmus is pathologic. It is unreasonable that such difficult judgments have been placed in the hands of minimally trained officers. Dell’Osso, "Nystagmus, Saccadic Intrusions, Oscillations and Oscillopsia", 147 Current Neuro-Opthalmology 147.

Underline added for emphasis. In the interest of full disclosure, I'll say that I got that quote from the blog of a DUI attorney. However, he provided the reference and unless he just out and out lied or substantively edited the quote there's no way any "out of context" thing could significantly alter the point. Dr. Dell'Osso was pretty direct and unequivocal in his statements. Note, in particular, the statement that is consistent with my belief that police officers are not qualified to do what they're doing in judging impairment level.

The DUI attorney's subject blog entry is at http://www.duiblog.com/2005/06/13/nysta ... st-part-2/ . Note the following additional discussion pertaining to the nystagmus test:

"See also an interesting article by Umeda and Sakata entitled "Alcohol and the Oculomotor System", 87 Annals of Otology Rhinology 69, wherein scientists concluded that gaze nystagmus was one of the least sensitive eye measurements of alcohol intoxication. The nystagmus which officers are trained to believe indicates intoxication is naturally present in some individuals without the presence of alcohol. It can also be caused by many other factors, as the Supreme Court of Kansas has noted after a review of the scientific literature:

'Nystagmus can be caused by problems in an individual’s inner ear…. Physiological problems such as certain kinds of diseases can result in gaze nystagmus….Furthermore, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in nystagmus. The consumption of common substances such as caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption.' State v. Witte, 836 P.2d 1110.

Obviously, drinking coffee and smoking cigarettes are not unusual. And note that most DUI arrests occur late at night — just when eyestrain and eye muscle fatigue are most expected.


Underline again added for emphasis.

[JohnStOnge]

Since the horizontal gaze nystagmus test was mentioned, I am going to post a quote by Dr. L. F. Dell’Osso, Professor of Neurology at Case Western Reserve University School of Medicine and Director of the Ocular Motor Neurophysiology Laboratory at the Veteran’s Administration Medical Center in Cleveland. It bears upon the idea that a police officer can do something like reliably estimate the BAC of an individual to within 0.02 based on this test. Here it is:

"Using nystagmus as an indicator of alcohol intoxication is an unfortunate choice, since many normal individuals have physiologic end-point nystagmus…Without a neuro-opthalmologist or someone knowledgeable about sophisticated methods of eye movement recordings, it is difficult to determine whether the nystagmus is pathologic. It is unreasonable that such difficult judgments have been placed in the hands of minimally trained officers. Dell’Osso, Nystagmus, Saccadic Intrusions, Oscillations and Oscillopsia, 147 Current Neuro-Opthalmology 147.

Underline added for emphasis. In the interest of full disclosure, I'll say that I got that quote from the blog of a DUI attorney. However, he provided the reference and unless he just out and out lied or substantively edited the quote there's no way any "out of context" thing could significantly alter the point. Dr. Dell'Osso was pretty direct and unequivocal in his statements. Note, in particular, the statement that is consistent with my belief that police officers are not qualified to do what they're doing in judging impairment level.

The DUI attorney's subject blog entry is at http://www.duiblog.com/2005/06/13/nysta ... st-part-2/ . Note the following additional discussion pertaining to the nystagmus test:

"See also an interesting article by Umeda and Sakata entitled "Alcohol and the Oculomotor System", 87 Annals of Otology Rhinology 69, wherein scientists concluded that gaze nystagmus was one of the least sensitive eye measurements of alcohol intoxication. The nystagmus which officers are trained to believe indicates intoxication is naturally present in some individuals without the presence of alcohol. It can also be caused by many other factors, as the Supreme Court of Kansas has noted after a review of the scientific literature:

'Nystagmus can be caused by problems in an individual’s inner ear…. Physiological problems such as certain kinds of diseases can result in gaze nystagmus….Furthermore, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in nystagmus. The consumption of common substances such as caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption.' State v. Witte, 836 P.2d 1110.

Obviously, drinking coffee and smoking cigarettes are not unusual. And note that most DUI arrests occur late at night — just when eyestrain and eye muscle fatigue are most expected."


Underline again added for emphasis.

[JohnStOnge]

You know, I was always opposed to the DUI hysteria and the draconian, Nazi-like approach to the "drunk driving" problem; but the more I read about the details after having seen this poor handicapped guy popped the more I am horrified by it.

Like in Louisiana if you are below 0.05 you're presumed not to be impaired. If you are 0.08 or above you are presumed to be impaired. If you're 0.05 to <0.08 it's a judgement call by the police and a judge. It's like if, instead of having specific speed limits the law said you can't drive "too fast." So you look at the sign and it says 70. But all that means is that if you're going more than 70 you'r presumed to be going too fast and you're in trouble. If you're going less than 45 then you're presumed not to be going too fast. But if you're going 45 to 69 a police officer can decide you're going too fast and arrest you then it's up to a judge to determine if he agrees. Plus if you're estimated to be going 71 they're going to handcuff you, throw you in jail, take your license away for 90 days, fine you $1,000, either put you in jail for 6 months if you're convicted or put you on probation where you have a speed governor placed on your car and have to attend some kind of anti speeding therapy that costs you another couple of thousand dollars. Oh...and the device they're using to estimate your speed might say you're going 71 when you're really going 61. And you have to worry about the police officer biasing the estimate upward by improperly using the equipment. It's absolutely ridiculous.

All that in the context of a situation in which different people have different levels of response to alcohol and it's entirely possible for somebody to honestly think they're "legal" to be convicted and people who aren't qualified to judge human impairment level are judging human impairment level. In fact, that's what happened in the case of the handicapped guy I'm talking about. He knew he couldn't pass a test of balance and coordination so he told the officer to just give him the breath test. He was absolutely confident that he would pass. But the officer did that thing of making him exhale his very last breath to bias the estimate upward and he registered between 0.08 and 0.09. And here we are.

Somehow, some way, some day somebody's got to get the gonads to stand up to the fanatics of MADD and their allies and tell them to find some way to wallow in their bitterness other than spending their time on a crusade to make millions of other people miserable.

Again, we could "save lives" by making it illegal to drive for any recreational purpose at all. We could "save lives" by putting severe restrictions on driving on night. We could probably save lives by making it illegal for the driver of a vehicle to talk to passengers (many people tend to take their eyes off the road when they do that). We could "save lives" by monitoring mileage on people's cars, giving them monthly mileage quotas, and requiring that they justify mileage traveled beyond their quotas. The "it wills save lives" argument is NOT a legitimate blanket argument for having this kind of draconian intrusion upon liberty. People should be able to do something like go to their daughter's wedding and have a few glasses of champagne then drive home without having to risk what happens to someboy nowdays if they get popped for violating DUI laws that are totally beyond the pale. Sure, if somebody's weaving all over the road they shouldn't be allowed to drive. But I think that an awful lot of people, millions in fact, are being put through complete misery after being cited for DUI when they never have hurt anybody and never would have hurt anybody as a result of running afoul of this witch hunt.

[ngineer]

As a former cop, I can tell you what any lawyer worth his salt will tell you:

Never blow.

That being said, BAC is evidentiary, but it does not carry more weight than, say, acting like a drunk on the in-car video. I did not do a lot of traffic, and when I did pop someone for DUI, they were very drunk, or it was the result of an accident. Of all the DUIs I had over 17 years, I'd say that maybe only about 25% of them actually took the Datamaster. Of those who did not blow, I had about a 90% conviction rate. That is because they were either falling down drunk and this was obvious on the video, or they pled guilty. The BAC is usually just one piece of evidence in a successful DUI prosecution. If the person is truly DUI, then there will be convincing evidence from the on scene video, the video of the booking process, attention to detail by the officer, and other circumstances such as an accident, etc.

If someone gets convicted on the BAC test alone, then my question would be, "Why did you submit to the damn test?" If someone is truly not "drunk," then they should have the good sense to refuse the BAC test. Cases without BAC and video of an obvioulsy drunk person never go to trial and usually get either dismissed or pled down to something minor like careless driving.

You can refuse to blow only if you agree to the blood test. Refusal of both, in PA, results in the loss of your license for a year.

[ASUG8]

I was going to read some of this thread, but when every other post became a chapter of a book I stopped.