I continue to receive queries concerning a news article I commented on a long ago, "Parking Under the Influence". And the answer is….Yes, you can be arrested in many states for "sleeping under the influence" in your parked car — on the shaky theory that you were probably driving some time earlier and were probably intoxicated at the time.

What was unusual about that Alabama story was that those asleep in their cars had admittedly never driven — but were arrested because they might.The response of MADD and government has been that this helps prevent DUI-related fatalities. As the Alabama sheriff said, "What if they woke up at 2:00am…and decided to drive?" What is frightening, of course, are the obvious ramifications: Where do we stop once we decide to punish folks for what they might do?

In any event, despite the rhetoric about preventing traffic fatalities, the real concern seems increasingly focused on punishment rather than prevention:

Question: If an individual begins driving home from a restaurant and realizes he has had too much to drink, what do we want him to do — if we are truly interested in preventing an accident?

Answer: We would like to see that person pull over and sleep it off.

Question: How do we encourage that conduct?

Answer: We don’t punish him for doing it.

Question: Then why do police continue to arrest and the courts to convict these folks for drunk driving?

There are two issues involved. First, the legal issue: Although under the influence, was the individual driving? The various states have slightly different definitions of what constitutes "driving", but they usually involve "operating" or being "in physical control" of a motor vehicle. Second, the public policy issue: Shouldn’t we encourage conduct that seeks to avoid danger to the public and/or commission of a crime?

Looking at the legal issue first, how can a person be "operating" or "in physical control" of a vehicle if he is asleep? Well, in their stampede to "get tough" on drunk drivers, many states have stretched their definitions of "driving" to the breaking point — and beyond. In State v. Lawrence, 849 S.W.2d 761, for example, the Tennessee Supreme Court held that a defendant who was asleep on the driver’s side of his parked vehicle with the keys in his pants pocket was in "physical control" within the meaning of the DUI statute — and thus guilty of drunk driving. Similarly, in State v. Peterson, 769 P.2d 1221, the Montana Supreme Court held that the defendant was in "actual physical control" of the vehicle when he was found parked off the roadway, asleep in the driver’s seat with the keys in his pocket. There are, fortunately, other courts which have held that this does not constitute driving. See, for example, State v. Bugger, 483 P.2d 404 (Utah).

Most courts do not address the second issue: legalities aside, as a public policy matter should such conduct be punished? This is possibly because judges may feel that is a matter for the legislature to address. But consider the holding of an Arizona court in reversing a DUI conviction:

The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway. Arizona v. Zavala, 666 P.2d 456.

Makes sense. Of course, angering MADD is not a good way to get reelected to the bench.
 

 I’ve railed long and hard in the past about MADD’s neo-prohibitionist goals and its costs to our Constitution.  And it is no coincidence that the organizations’s founder, Candi Lightner, resigned years ago in disgust, saying that MADD had strayed from its original goal of saving lives and become prohibitionist.

Perhaps the public is beginning to awaken to the damage being done by this organization.  In the staff editorial of today’s Toronto Sun:

Have They Gone Madd?

Toronto, Canada.  Nov. 6 –  What was once a maternal grassroots movement to warn of the perils and tragedies associated with drinking and driving, Mothers Against Drunk Driving has sadly devolved into the WCTU.

It must be losing its grip.

The stridently puritanical Woman’s Christian Temperance Union, which brought its tea pot to Canada in 1874, believed even a sniff of demon alcohol caused unemployment, disease, prostitution, poverty and immorality.

And it wanted this "evil" not just restricted but abolished.

Is this MADD’s next mission?

The anti-drunk-driving crusaders, not satisfied with the successful RIDE campaigns they helped launch, are now demanding legislation that would allow police to stop anyone on the pretext of conducting random roadside breath tests (RBT) — anywhere and anytime.

That’s right, without cause, as in a police state — claiming their Ipsos Reid polling has 77% of Canadians support RBTs.

We find this impossible to believe.

The CEO of MADD Canada is Andrew Murie, the same exec who defended a Toronto-area police force last year that, to us, was sending a mixed pre-Christmas message by handing public-intoxication tickets to bar goers waiting on the sidewalk for their prearranged designated driver service.

Instead of congratulating the bar goers for not drinking and driving, and being responsible, however, Murie congratulated the police for busting them, and then laid blame on the bars for over-serving.

Mothers Against Drunk Driving is supposed to be against drunk driving, not the act of having a drink or even having one too many drinks.

But it now appears to be against drinking altogether — and this could put its charitable Project Red Ribbon campaign in peril.

The public can only take so much lecturing, hectoring and infringement of its civil liberties.

And we, for one, have had our fill.

MADD had best go back to its maternal grassroots before the public cashes them out as over-bearing, self-important zealots.

We loathe drinking and driving, and we say this without reservation. We are in the news biz, after all, and we daily see far too many tragedies across this country not to agree with MADD’s original cause.

But, unlike MADD, we have not gone temperance.

Nor do we advocate police statism.
  

How would you like to be stopped by the police anytime, anywhere, and tested on a breathalyzer — for no reason except that the cop felt like it? 

MADD Would Like to See Random Breath Tests for Drivers

Toronto, Canada.  Nov. 2 –  If Mothers Against Drunk Driving CEO Andrew Murie has his way, drivers across Canada could be forced to take a breathalyzer test anywhere, anytime — whether police suspect drunk driving or not.

And Murie may get it…

Murie has some big backers in the random breath testing debate.

Federal Justice Minister Rob Nicholson has endorsed such a change in the law, echoing a June 2009 recommendation from the Standing Committee on Justice and Human Rights that Ottawa amend the criminal code to allow police across Canada to conduct random breath tests.

RBT would replace Canada’s current, 40-year-old way of doing things, where police can demand a breath test only if they have reason to suspect a driver is too drunk to drive.

Ottawa said it would talk to the provinces first, then consider the changes…

But RBT is a slippery slope for a “free and democratic country” such as Canada, said Nathalie Des Rosiers of the Canadian Civil Liberties Association.

Increasing police power to that point, she said, would send the truth north strong and free toward becoming a police state.

“It’s about giving the power to the police to arrest someone anywhere, anytime and subject them to a criminal investigation where they have to comply, even though there is no reasonable grounds that they’ve done anything wrong,” said Des Rosier.  

This is a logical progression in the long series of drunk driving laws and court decisions which have steadily eroded our Constitutional rights — here and, apparently, in Canada. Look for MADD USA to make random stops and breath tests their next legislative goal.

In my last post I presented a videotape from breathalyzer expert Stephen F. Daniels showing the falsification of monthly breath machine reports in the Hillsborough County (Florida) Sheriff’s Office.  

The following is another videotape from Mr. Daniels, depicting officers falsely signing a document verifying compliance with breath test regulations before the test of an arrested suspect.  The regulation involves the requirement that the suspect must be kept under constant observation for a period of at least 20 minutes before the test is administered.  This is to ensure that the suspect has not burped, belched or regurgitated — which can tremendously increase a breath test reading; it takes up to 20 minutes for the "mouth alcohol" to be dissipated.

The videotape on YouTube:  Falsify Notary and Violate the 20-Minute Observation Period – Officer Cooper and Deputy Glover.   

As the video clearly shows, none of the officers signing the document (which was blank) under penalty of perjury observed the suspect for more than a few seconds, if at all.  This was later confirmed by a Florida court, which stated in its ruling in favor of the accused: "The lack of candid disclosure concerns this court.  The affirmation of Officer Cooper (DD9) of constant observation of the Petitioner from 5:58 am until 6:17 am is clearly not true…Officer Cooper failed to maintain observation of Petitioner and falsely states that he observed her when he did not."  

It should be understood that what happened on this videotape is not an isolated instance.  Cutting corners and falsifying documents in drunk driving cases is common in police agencies across the country.
 

I have written ad nauseum about the inaccuracy and unreliability of breathalyzers.  See, for example, How Breathalyzers Work (And Why They Don’t).

Sources of inaccuracy occur, among other reasons, because of inherent design defects, defective and inaccurate software, physiological variability of subjects tested, improper administration by police, and unreliable maintenance and calibration.  

The latter is a continuing problem in police agencies across the country — including the tendency to falsify maintenance and calibration records.  This is done to validate questionable test results — to permit admissibility as evidence in court and to support  public and judicial confidence in the machines.  These behind-the-scenes procedures are, of course, difficult to detect.

One of my readers, Stephen F. Daniels of Treasure Island, Florida, has recently contacted me with fascinating videotape of what appears to be one of those procedures.  

Mr. Daniels holds a certificate from the Florida Department of Law Enforcement  as a "Breath Test Operator and Agency Inspector".  He informs me that the videotape — which he has posted on YouTube — shows a police agency inspector of the Hillsborough County Sheriff Office in Tampa "intentional falsifying the failing monthly inspection reports and making up false excuses which allowed her to retest and keep the failing Intoxilyzer on-line". 

The full 14-minute videotape can be viewed at:  Fake O-Ring Excuse by Hillsborough County Sheriff Office Alcohol Inspector.     

For those who may question this, consider the following Tampa TV news report:

Misuse of DUI Machines at Hillsborough Jail?

When a law enforcement officer arrests someone for DUI and takes that person to the Hillsborough Orient Road Jail, we have seen there can be problems.

Wanda Sullivan, who was arrested for DUI, found that out when she was pulled from a chair and dragged across the floor. However, our 3-month investigation also shows there are problems with the way law enforcement authorities have used the breath testing machine, the Intoxilyzer 8000.

We ran a control test with DUI consultant Stephen Daniels, using the Intoxilyzer 8000. The result of the test had his blood alcohol at .000.

Then we had Daniels eat some Wonder Bread, and he blew a .033. Although still under the legal limit, Daniels was registering alcohol after only eating bread…

This isn’t the first time the accuracy of the breath testing machines and the way the Florida Department of Law Enforcement monitors them has been called in to question. Within the past year, an inspector had to be dismissed after she was caught telling other police agencies how to get around the guidelines if the machine failed the state-mandated test.

 
For a YouTube videotape showing Mr. Daniels taking another breath test after eating a slice of bread, see Wonder Bread Blow With a 0.405% BrAC (over half of the legal limit).  

 

I posted a few days ago about yet another example of MADD’s influence in pressuring legislators to pass ever-more Draconian laws:  proposed DUI laws in Manitoba giving police unlimited power to pull over any driver they wish and administer field sobriety tests – regardless of whether there are any indications of drunk driving.  The following is a newspaper staff editorial standing up to similar pressures from MADD in another province, British Columbia:

Liberties Infringed

Vancouver, BC.  Oct. 25 –Drunk driving is a scourge on society. It kills innocent people and maims others. But the B.C. government has taken stern measures to combat it, including the imposition of some of the toughest penalties in Canada.

  What’s wrong with this picture…besides the macho "top gun" stuff?

Local Officers Honored as "Top Guns" for DUI Arrests

York, PA.  Oct. 20 – Local law enforcement officers will be honored for taking more than 380 impaired drivers off York roads last year.

The Pennsylvania Driving Under the Influence Association will honor 48 officers statewide with 2010 DUI Top Gun Awards…

"We are taking this opportunity to honor those officers in Pennsylvania who were leaders during 2009 in either making DUI arrests or conducting drug influence evaluations on impaired drivers," C. Stephen Erni, executive director of the Pennsylvania DUI Association, said…

So….why are cops being given awards for making arrests — rather than for arrests resulting in convictions?  (For a discussion of the problem, see my earlier post Officers Rewarded for Arrests – Not Convictions.)
 

Two stories in today’s newspapers say a lot about where the focus is for saving lives on the highways:

Random Tests Go Too Far

Winnipeg, Canada.  Oct. 18 — Police powers to check for impaired driving have encroached relentlessly upon civil liberties, such that innocent motorists are randomly, routinely pulled over and questioned, absent of cause. If an officer suspects any drinking has occurred, drivers must take a test. The penalties for refusing are equal to failing the test...

Now the Harper government wants to eliminate the need for any suspicion of drinking, allowing police to randomly demand a roadside test.

Advocacy group Mothers Against Drunk Driving is celebrating, saying this should make the glass of wine with dinner a thing of the past…

MADD, however, has been strangely silent about the proven greater dangers to human life of talking or texting on cell phones while driving.

Texting and Driving a Costly Business Risk

Miami, FL.  Oct 18 — Cellphones and driving don’t mix.

According to the National Safety Council, an estimated 200,000 crashes a year are caused by drivers who are texting. And that doesn’t include the near-misses. Added to that, a recent Car & Driver Magazine study found that texting and driving was more hazardous than drinking and driving, with texting drivers three to four times slower in their response rates than drunk drivers...

Perhaps Candy Lightner, the founder and first president of MADD, was right when she quit the organization, claiming that it its focus had shifted from saving lives to prohibition. 
 

As I have said in earlier posts, law enforcement investigation techniques depend largely upon the fictitious premise that all humans are physiologically identical (see “Convicting the Average DUI Suspect"). Without that presumption, field sobriety and breath alcohol tests would not be possible. I have previously discussed many examples of physiological differences — from person to person and within one person from moment to moment — which will directly alter breath or blood alcohol testing (see, for example, “Diabetes and the Counterfeit DUI”, “GERD, Acid Reflux and False Breathalyzer Results" and "The Effect of Anemia on Breath Tests").

Yet another example of variability is body temperature. Put simply, an individual’s body temperature will have a direct effect on the results of a breath test. The effects of changes in body temeprature from the norm of 98.6 degrees on breath testing has been discussed in an article entitled “Body Temperature and the Breathalyzer Boobytrap”, 721 Michigan Bar Journal (September 1982). If because of illness, for example, the body temperature is elevated by only 1 degree Centrigrade (1.8 degrees Fahrenheit), the 1:2100 breath-to-blood partition ratio will be affected so as to produce a 7 percent higher test result. Higher body temperatures will, of course, result in greater errors.

You don’t have to be sick to have a higher body temperature. Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington, confirms this — and the effects on breath test results. In an article entitled “Physiological Errors Associated with Alcohol Breath Testing”, 9(6) The Champion 18 (1985), he comments that even the average body temperature of a normal, healthy person “may vary by as much as 1 degree Centigrade above or below the normal mean value of 37 degrees Centigrade — or 1.8 degrees from the mean value of 98.6 degrees Fahrenheit”.

Not only can the normal mean body temperature of an individual vary from that of other persons, but the “temperature of any individual may vary from time to time during the day by as much as 1 degree Centigrade”. Result? The partition ratio for alcohol in blood is altered — meaning, according to Professor Hlastala, a 6.3 percent error for every 1 degree Centigrade increase or decrease from the presumed normal body temperature.

Yet another example of how breathalyzers are not actually testing you, but rather an “average” person who does not exist.
 

As I’ve explained in past posts, the original legal limit for drunk driving was set in 1938:  0.15%.  This was based upon studies and recommendations from the American Medical Association.  Many years later, this was lowered to .10% and finally, after intensive lobbying by Mothers Against Drunk Driving, to 0.08%.  See DUI, MADD and the "New Prohibition".

MADD’s agenda is to get it lowered further — to .05%.  The eventual goal is .00% — conviction for drunk driving if there is even a trace of alcohol in the system, regardless of the absence of any indication of impairment.  (Note: MADD has already been successful in achieving .01% "zero tolerance" laws nationwide for drivers under 21.) This bears out the reasons why MADD’s original president, Candy Lightner, resigned from the organization she founded, saying it had become essentially prohibitionist rather than dedicated to saving lives.

In today’s news, the latest in MADD’s strategy:

Austin Chief Pushes for New Drunk Driving Charge

Austin, TX.  Oct. 7 — A campaign to create a new category of driving while intoxicated is being promoted at the Capitol as one way to curb growing problems in Texas’ system of punishing drunken drivers.

Austin Police Chief Art Acevedo, among the supporters of the change, said the idea behind a new offense of “driving while ability impaired” — DWAI — would cover drivers whose blood-alcohol content is between 0.05 and 0.07.

That would be less than the 0.08 level required before police can charge a motorist with drunken driving…

Acevedo…noted that one person may drive dangerously at the 0.08 level — the nationally accepted standard for being drunk — while others “may be at 0.05 or 0.06. It depends on the person.”

“People sometimes focus on how many drinks they can have before they’ll go to jail,” Acevedo said. “It varies. … A person may be intoxicated at 0.05, and you don’t want them out driving.”

In his written testimony (to the Senate Criminal Justice Committee), Acevedo said he thinks the changes would make it easier to process and convict drunken drivers “as well as preventing others from making that initial mistake to drink and drive.”

Bill Lewis, the legislative director for Mothers Against Drunk Driving, which has led the charge in recent years to toughen Texas DWI laws, said the group has not reviewed or endorsed the proposed new charge of DWAI. He added, “I don’t see how it would hurt.”

Hmmm….Some people will be intoxicated at .08%, but "others may be at 0.05%".   May be?  So everyone with .05% is convicted and punished for drunk driving — because some of them might be intoxicated? 

MADD marches on….
 

(Thanks to Murphy Mack.)