The man, Lawrence Tay­lor is the world cham­pion in DUI Defense.  I am try­ing hard to get there.  Thank you Mr. Tay­lor for the trails you left in the sand.  Below is my favorite thing that he has ever writ­ten or said about DUI law.  It is elo­quent.  It is awe­some.  It is my honor to have his per­sonal per­mis­sion to place it on my web­site for you to read.  Enjoy!  Please visit the Dean of DUI Defense, Lawrence Taylor’s web­site for more information.

“The DUI Excep­tion to the Constitution”

Posted by Lawrence Tay­lor on May 9th, 2005

In the course of var­i­ous post­ings con­cern­ing MADD, I have received emails sug­gest­ing that they are a civic-minded orga­ni­za­tion which does not deserve my crit­i­cisms. As I have said on many occa­sions, I believe them to be a well-intentioned group of “true believ­ers” — who, like most zealots, have a rigid and nar­row focus and are igno­rant of the harm they cause to oth­ers. And in other posts I have tried to explain the nature of that harm.

Many years ago, I was invited to give a lec­ture to a “think tank” of gov­ern­ment, cor­po­rate and aca­d­e­mic types. In the years since then that I have given ver­sions of it to other groups, the legal and polit­i­cal sit­u­a­tion has only grown worse.

Per­haps the lec­ture itself might bet­ter explain why I con­sider MADD to be a con­tin­u­ing threat to our insti­tu­tions and con­sti­tu­tional safeguards…..

I hope to con­vince you in the next hour, some of you, that the great­est sin­gle threat to our free­doms, the free­doms set forth in the Bill of Rights, is not from Iraq or Iran. I don’t think it’s from North Korea. I don’t think it’s from the extrem­ists of the Mus­lim world. The threat, as it has always been through­out his­tory, is inter­nal: It is from within. But I do not think it is from the Amer­i­can Com­mu­nist party or extrem­ists on the right. I hope to con­vince a few of you that the great­est sin­gle threat to our free­doms today comes from a group con­sist­ing largely of Amer­i­can house­wives. They call them­selves the Moth­ers Against Drunk Dri­ving. MADD.

I am fully aware that some of you belong to MADD. And I am cer­tainly not here to make fun of them. Oth­ers of you here do not belong to MADD, but you have con­tributed to MADD and many more of you here, per­haps most of you here, are in com­plete sym­pa­thy with their goals and their activ­i­ties. Many of you have had tragic losses at the hands of drunk dri­vers. But I hope to con­vince you in the next hour that you might want to reassess your view of that par­tic­u­lar organization.

And I do not take them lightly in terms of their inten­tions. But we know that through­out his­tory it is the well-intentioned zealots — those who believe strongly in the right­ness of their cause –that are most will­ing to impose those ideas upon oth­ers. I do not, by the way, for a moment sug­gest that we should legal­ize drunk dri­ving. I’m going to make that clear at the out­set. But it is the true believer who is the great­est threat. And I should at the out­set acknowl­edge my tremen­dous debt to Mr. Eric Hof­fer who wrote the book, The True Believer. He was a long­shore­man when I was going to school at Berke­ley in the 60’s. He did not have a high school edu­ca­tion, but was teach­ing phi­los­o­phy at the Uni­ver­sity of Cal­i­for­nia at Berke­ley and wrote this lit­tle jewel of a book that has been ter­ri­bly influ­en­tial in my own thinking.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Well, there’s no ques­tion, there were fewer acquit­tals now and the pros­e­cu­tors were increas­ing their con­vic­tion rate. But, there were still some acquit­tals. And so MADD and the fed­eral agen­cies decided to change the law fur­ther. More accu­rately, MADD came up with another law. This is called the per se law: If we can’t con­vince jurors that a per­son is under the influ­ence over .08, we can make it a crime to merely drive while hav­ing a BAC over .08. The crime is being over .08 per se. We don’t care if they’re intox­i­cated or impaired. If the per­son has a BAC level over .08%, or .10% blood-alcohol per­haps, in your state, that is a crime all by itself. Not only that, let’s keep the orig­i­nal law. So, now we give the pros­e­cu­tors two shots to obtain a con­vic­tion when­ever a test is taken by a sus­pect: If they can’t con­vince the jury he’s under the influ­ence, well then maybe they can con­vince them he was over .08, even though he was not under the influ­ence — and vice versa.

This once again cer­tainly increased the con­vic­tion rate, and the num­ber of acquit­tals con­tin­ued to drop. But there was a prob­lem. Acquit­tals were still hap­pen­ing. New, cre­ative and detailed attacks began chal­leng­ing the tech­nol­ogy involved in breath alco­hol analy­sis. The gist of the attacks by defense lawyers was based on the fact that the machine, to put it sim­plis­ti­cally, assumed that you are an aver­age person.

The machine is mea­sur­ing the breath. It is mea­sur­ing the alco­hol in the vapor of the alve­o­lar air in the deep lungs that you expel. But the machine is telling you how much alco­hol is in the blood — not in the breath. So it uses what we call a par­ti­tion ratio. To put it sim­plis­ti­cally, the machine has an old, very prim­i­tive com­puter inside it. There are dif­fer­ent machines, but the com­put­ers in them will all report, “Well, if you’ve got this result from the breath, there must be 2100 times as much in the blood!’ Using a mul­ti­plier inside the lit­tle com­puter, that’s what it prints out.

But the com­puter is assum­ing that your par­ti­tion ratio is 2100. Prob­lem? Very few peo­ple have a par­ti­tion ratio of 2100-to-1. It ranges any­where from about 1100-to-1 up to 3500-to-1 and higher. And there is no way of know­ing at the time of test­ing what your par­ti­tion ratio was because med­ical stud­ies have shown that the par­ti­tion ratio changes within an indi­vid­ual all the time. One per­son is going to be very dif­fer­ent than the per­son sit­ting next to him. Your par­ti­tion ratio tomor­row is going to be dif­fer­ent than what it is right now. Well, what does that mean? It means if you blow, let’s say, a .11 and you have a 1300-to-1 par­ti­tion ratio, that .11 is really 0.07. You’re inno­cent. Your crime, unfor­tu­nately, was not being average.

Well, attor­neys usu­ally go to law school because they failed physics, chem­istry and so on in col­lege, but a few defense attor­neys were able to mas­ter the tech­nol­ogy involved — were actu­ally learn­ing how this machine worked. And they thought, “Whoa! There’s an assump­tion here, 2100-to-1″, and they cross-examined the expert from the law enforcement’s crime lab and said, “Isn’t it a fact that…?” And the guy would hem and haw, and finally say, “Well, yeah.” Acquit­tal. The 2100-to-1 ratio issue is still a viable defense in a lot of states.

Not in Cal­i­for­nia any­more. And not in a grow­ing num­ber of states. In Cal­i­for­nia, our Supreme Court, which is slightly to the right of the U.S. Supreme Court, said, “No, not really, because what you’re doing is you’re mea­sur­ing the alco­hol on the breath. You’re not mea­sur­ing the blood directly, you’re mea­sur­ing on the breath, and there­fore we don’t have to have a par­ti­tion ratio.” Now, you prob­a­bly don’t appre­ci­ate the com­plete idiocy of that state­ment, because the Cal­i­for­nia Supreme Court did not under­stand the tech­nol­ogy involved. And it was an 8–1 deci­sion. A dis­sent­ing jus­tice in the deci­sion said, “Do you real­ize that we just cre­ated a new crime called dri­ving with ‘alco­hol on your breath’? And she was absolutely right. That’s what the Supreme Court of Cal­i­for­nia did.

Result? If I now ask a law enforce­ment crime lab expert on the stand in front of a jury, “Isn’t it a fact that the par­ti­tion ratio you used assumes an aver­age of 2100-to-1?” I can be held in con­tempt of court by the judge. If I try to bring out the truth, I can be jailed. I’m not exag­ger­at­ing. And I’m telling you that this is true in a grow­ing num­ber of other states. I have lec­tured in 36 states to lawyers’ groups, bar asso­ci­a­tions, and so on, so I’m famil­iar with the dif­fer­ent states and their dif­fer­ent approaches. All of which are becom­ing much more stan­dard­ized as the Fed­eral Gov­ern­ment con­tin­ues to step in.

Well, that made things a lot eas­ier for pros­e­cu­tors to con­vict in Cal­i­for­nia. Once again, the con­vic­tion rate went up. It became more and more dif­fi­cult to defend peo­ple accused of drunk dri­ving. I did not say “guilty” of drunk dri­ving: Accused of drunk dri­ving. Well, but there are still many defenses left, because, as I hope I will have time to get into, this machine is, to say the least, unreliable.

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

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

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

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

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

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

Now the the­ory of infrared spec­troscopy, as applied to DUI cases, is based upon the fact that any com­pound con­tain­ing the methyl group of mol­e­cules will absorb the energy from this 3,61 micorn light wave. One of those com­pounds is ethanol, also called ethyl alco­hol. Mol­e­cules of ethyl alco­hol con­tain the methyl group as part of its struc­ture. It is res­o­nant with this par­tic­u­lar fre­quency of light wave. So, the more ethyl alco­hol in the sam­ple cham­ber, the more energy is going to be absorbed, the less will get through to the recep­tor, the higher the blood-alcohol read­ing will go. Actu­ally, the con­cept is fairly sim­ple. Except, again, the light waves are absorbed not only by ethyl alco­hol, but also by any methyl group in any com­pound. In other words, it is a stu­pid machine. It does not dif­fer­en­ti­ate between ethyl alco­hol and any other com­pound con­tain­ing the mol­e­c­u­lar group. It is what we call non-specific for ethanol. Any com­pound on your breath that con­tains the methyl group will be detected as alco­hol — and reported as alco­hol. If you hap­pen to have 32 dif­fer­ent com­pounds con­tain­ing the methyl group on your breath, it not only will report them all as alco­hol, it is cumu­la­tive: the machine will add all of those com­pounds, includ­ing any ethyl alco­hol, and then report it as alco­hol in the blood.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lawrence Tay­lor, The DUI Excep­tion to the Con­sti­tu­tion, Lawrence Taylor’s DUI Blog: Bad Drunk Dri­ving Laws, False Evi­dence, and a Fad­ing Con­sti­tu­tion (May 9, 2005), http://www.duiblog.com/2005/05/09/the-dui-exception-to-the-constitution/