Problem: there are thousands of compounds containing the molecular group — of which well over one hundred have been found on the human breath.

Breathing gasoline or paint fumes, for example, or merely absorbing the fumes through the skin, can create false breath test results for days afterwards. And I’ve posted in the past that the problem is particularly acute when the suspect happens to be a diabetic, as diabetics often have high levels of acetone in their breath — a compound which contains the group in its molecular structure.

However, you do not need to be a diabetic to have high levels of acetone. Scientific research has established that acetone can exist in perfectly normal individuals at levels sufficient to cause false high breath-alcohol test readings.  See "Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol", 9 Journal of Analytical Toxicology 246 (1985).

Fasting or radical dieting, such as with the Atkins diet, can also cause significantly elevated acetone. Studies have concluded that fasting, for example, can increase acetone in the body sufficient to obtain breathalyzer readings of .06%.  This is cumulative — that is, the .06% will be added by the machine to any levels actually caused by alcohol or other compounds.  Thus, a true breath alcohol of .03%, for example, would be reported by the machine as .09%. "The Likelihood of Acetone Interference in Breath Alcohol Measurement", 3 Alcohol, Drugs and Driving 1 (1987).  And low-carbohydrate diets have long been associated with high levels of acetone production.

Of course, for many years law enforcement denied that any such problem existed, just as they denied that "mouth alcohol" and radio frequency interference caused false test results — until manufacturers started adding acetone detectors, mouth alcohol detectors and RFI detectors to their machines (none of which, unfortunately, have proven reliable.)

How reliable are breathalyzers? Not very.  See "How Breathalyzers Work — and Why They Don’t" and "Close enough for government work". As I’ve posted in the past, there appears to be a growing trend toward letting officers draw blood themselves at the scene of arrest. Given the reassurances about these machines so often expressed publicly by law enforcement, one has to wonder why they are increasingly turning to the involved process of hypodermic needles, preservatives, anticoagulents, refrigeration and delayed laboratory analysis….
 

Mothers Against Drunk Driving Receives "D" Score
 

Goose Creek, SC.  July 26 – Mothers Against Drunk Driving (MADD) is in the hot seat after a dismal score from the American Institute of Philanthropy (AIP). The AIP Charity Guide and Watchdog Report gave MADD a "D" rating on a A-F scale in its 2010 report.

In today’s news, a perfect example of the idiocy of MADD’s holy crusade:  

Schumer: Steering Wheels Could Stop Drunk Driving

Elmira, NY.  July 23 — In the future, cars may be able to detect — through a driver’s skin — whether he or she is drunk, and prevent the engine from starting.

U.S. Sen. Charles Schumer, D-N.Y., was in Elmira on Friday to promote a bill that would fund research of alcohol detection devices that could make such a scenario possible.   Called the ROADS SAFE Act of 2010, or Senate bill 3039, the act would direct the National Highway Transportation Safety Administration to spend $60 million over five years to figure out whether it’s possible to make an alcohol-detecting ignition lock that is both reliable and affordable.

"There’s a real chance for a tremendous breakthrough that doesn’t prosecute drunk driving after the act, but prevents it," Schumer said during a news conference with area officials at the Hazlett Building…

Schumer said sensors that can detect blood alcohol content could be placed on steering wheels and driver’s seats. He said that technology is already in use in an alcohol-sensing bracelet, such as one worn by actress Lindsay Lohan.

"It detects through sweat that is always coming out of your pores, even when you can’t feel it, the legal limit of alcohol," Schumer said. "And when she was over it, it would go beep beep, and law enforcement would come get her."… 

Hmmm….Shutting down the car’s ignition if the steering wheel detects sweat from the hands.  Clever, except….uh, what about gloves?   

Gee, $60 million of your taxes and all that technology…foiled by a cheap pair of gloves!  So guess what now becomes standard equipment in cars in their…uh, glove compartments?  Or…maybe they could make possession of gloves in a car illegal?  Or maybe…

I think we’re going to need another $60 million.
 

First, let’s get something clear:  drunk driving is dangerous.  That’s why we have DUI laws — not to punish the use of alcohol, but to punish those who represent a danger behind the wheel and thereby deter that person and others from endangering the public.  

The purpose, then, is protection of the public through deterrence of dangerous conduct.  It is not to punish people for drinking.  If the goal is to protect the public from the dangers of impaired driving, then , why is the focus today solely on alcohol?  As I’ve mentioned in previous posts, numerous studies all indicate that, for example, driving while using a cell phone, distracted driving (eating or putting on lipstick in the read-view mirror) and driving while drowsy are at least as dangerous as drunk driving.  See, for example, Drunk Drivers vs Distracted Drivers, Most Dangerous: Drunk, Drowsy or Distracted?, Alcohol vs Cell Phone: Which is More Dangerous? and Inebriated or Texting While Driving – Which is More Dangerous?.

Yet we largely ignore these types of life-threatening conduct, while continuing to focus laws and law enforcement on DUI.

Again, I’m not suggesting that we legalize drunk driving; it should be punished.  But the hysteria needs to be toned down, and the focus should shift to the danger that impaired driving of any kind represents — not to whether alcohol is involved or not.

From a recent news story:

Study: Radio Sports Can Distract Drivers

Wokingham, England.  July 2 — British researchers said a study indicates listening to sports on the radio while driving can be as dangerous as drunken driving.

The Transport Research Laboratory in Wokingham, England, said its study involving nine men and nine women ranging in age from 25 to 45 found reaction times were slowed by up to 20 percent when drivers were listening to sports, adding nearly 20 feet of additional stopping time for a car travelling 70 mph, the Daily Telegraph reported Friday.

"To put this into context, this increase in distance traveled is 10 percent further than the additional distance when driving with a blood alcohol level at the U.K. legal limit", the report read.

Perhaps MADD should concentrate on accident prevention, not on returning to prohibition.  
 

Appeals Court Nullifies Drunk "But Not Yet Driving" Offense

Pewaukee, WI.  July 14 — A state appeals court nullified a drunk driving arrest today against a woman who was nabbed in Pewaukee before she could even start her car.

Brittany Meye was arrested in January of last year, just after she got into her car at a gas station.  A police officer approached her, noticed a strong scnet of alcohol on her breath, and arrested her before she could start the car and pull away.

The Second District Court of Appeals in Waukesha said it’s wrong to suspect that a driver is drunk, just by smellin alcohol on people’s breath before they get behind the wheel.

Pretty obvious, right?  Then why was Ms. Meye arrested by the cop — and charged by the prosecutor?

And if you think this is an isolated example, see a few of my earlier posts: State Supreme Court: DUI Doesn’t Require Driving, Convicted of Drunk Driving…Without Driving, Sleeping Under the Influence and How to "Drive" Under the Influence While Sleeping.

This is bad enough, as the reports are supposedly signed under oath and subject to perjury charges.  But it becomes particularly serious when you realize that very few officers can remember the details of a given case when testifying months later.  In almost all cases, the officers read their own reports before taking the stand — and then testify essentially to what they read in the report.  And in DUI cases, they are increasingly testifying based upon a fictional "xeroxed" case.

For example, California defense attorney Jon W. Woolsey got a court order requiring the California Highway Patrol to turn over any templates or forms used by the officer who arrested his client for DUI.  The following is the template that was used:

FIELD SOBRIETY TESTS

All FST’s were explained and demonstrated.  I asked Name if he/she understood each test completely and he/she stated that he did.  All tests were performed on a Location dirt/asphalt Parking lot/Shoulder that was free of debris.  The weather was cool, clear/cloudy, and daylight/dark.    

1)Horizontal Gaze Nystagamus:

Name eyes showed lack of smooth pursuit, distinct nystagmus at the extremes and an onset prior to 45 degrees.  Name’s eyes showed vertical gaze nystagmus.        

2)One leg stand:Name lifted his/her right/left foot and dropped it immediately on the count of 1000.  

3)Romberg:Name estimated 30 seconds in 0000 seconds.  Name body swayed in a circular motion 1 to 2 inches from center of mass. 

4)Finger Count:I explained the test to Name 

5)Preliminary Alcohol Screening Device:

I admonished Name regarding the Preliminary Alcohol Screening Device (PAS) and he/she agreed/refused to take the test.  I administered the PAS to Name at 0000 and 0000 hours with BAC results of .000% and .000%.

Other Factual Information:

All times are approximate and may vary from the times on the Preliminary Alcohol Screening Device, the breath test and times provided to me by dispatch.

First Observations:

On 0-00-07 I was on routine patrol in a fully marked CHP patrol vehicle, with my partner officer nnn.  I was traveling

Observations After Stop:I contacted the driver and advised him/her the reason for the stop.  As I spoke with the driver I smelled the strong odor of an alcoholic beverage emitting from his/her breath.  I noticed that the driver had red watery eyes, as well as slow and slurred speech.  I asked the driver for his/her driver’s license, which he/she provided me.  I identified the driver using his/her CaliforniaDriver’s License as John Doe 00-00-00. I asked the driver if he/she had anything to drink and he stated, “–.”  I asked the driver to exithis/her vehicle and meet me at the right front of my patrol vehicle.  I noticed that as the driver walked he had an unsteady gate.  As I spoke with the driver I noticed that he/she had an odor of an alcoholic beverage emitting from his/her breath and person.  I also noticed that the driver was unsteady on his/her feet swaying in a circular motion 1 to 2 inches from center of mass, he/she had slow slurred speech, and red and watery eyes.  I advised the driver that I smelled a strong odor of alcohol emitting from his/her breath and askedhim/her how much he/she had to drink and he/she stated, “—-.”  I explained and demonstrated several FST’s to Name, which he/shecould not complete as explained and demonstrated.  

Arrest:  Based on my observations of Name’s driving, Name’s objective signs of alcohol intoxication, and his/her performance on the FST’s, I formed the opinion that Name was driving under the influence of an alcoholic beverage and unable to safely operate a motor vehicle.  I placed Name under arrest for 23152 (a) CVC at 0000 hours.  I advised Name of implied consent and he/she chose theblood/breath test.  I booked Name into the Sonoma County Jail.

Recommendations:

I recommend a copy of this report be forwarded to the Sonoma County District Attorney’s for review, and that Name be prosecuted for violation of 23152 (a) CVC driving under the influence of an alcoholic beverage, and _____

Basically, the report tells the officer what he should have seen — not what he actually saw.   And as any honest cop will tell you, drunk driving cases rarely follow such a neat, pre-described script.  But it is convenient.  And avoids messy complications – like the actual facts.   

One size fits all.

 

Saves a lot of time.

In this computer age, however, this practice is commonly abbreviated even further by using computer templates: word processing forms which have all of the "facts" already entered, with blanks to fill in for name, date, etc.  And this has been going on for some time now, as the following news story from a few years ago shows:
 

DUI Suspects May Go Free Due To Questionable Arrest Reports

Orlando, FL. November 16 — 9 Investigates has uncovered dozens of DUI suspects that may go free because sheriff’s deputies appear to be using pre-written arrest reports. There are some experts who believe this may even amount to perjury.

When a deputy makes a DUI bust, the officer writes an arrest report. It’s the official record of what the deputy says happened. But Eyewitness News has uncovered dozens of Orange County DUI arrest reports that apparently have come from pre-written templates. One report, for instance, says the suspect "stumbled slightly when walking and swayed moderately … with a three inch to five inch orbital rotation/sway." At least ten reports, written by the same deputy over a six-month period, use the exact same phrase. Even reports written by other deputies contain that exact phrase.

In many reports, the deputy noticed the "strong odor of an alcoholic beverage within my interior cab." That exact phrase appears in report after report. And it’s there whether the suspect’s blood alcohol content was anywhere from .03 to .16. 9 Investigates found 11 other reports, written by a different deputy, that use those exact words, again, no matter how much the suspect had to drink.

"It just doesn’t smell right," said DUI defense attorney Stu Hyman. "It’s a sad state of affairs when somebody hasn’t even committed the offense yet, but the report has already been written." 9 Investigates found one deputy whose suspects always do an "orbital rotation" and always "counter-clockwise." Five deputies always leave their suspects in the car for exactly five minutes before smelling alcohol. In one case, a suspect was described as "he/she."

It all leads Hyman to believe the reports were pre-written. "Why is it that everyone is swaying three to five inches? Why isn’t it two to eight? Why not one to seven inches?" questioned Hyman….

9 Investigates found court testimony where a deputy indicated the sheriff’s office has computer DUI templates. The deputy testified, "I’ve been told people use them. I just choose not to."

None of this comes as any surprise to experienced DUI attorneys, who are used to seeing what I have called in my book and lectures "xeroxed symptoms". This has been going on for a long time.  Years ago, I used to get a court order for copies of an arresting officer’s DUI reports for the previous 30 days; the symptoms often proved remarkably similar.  When the reports became an embarrassment, the Orange County (California) D.A.’s office finally appealed and stopped the judges from issuing the orders — but never prosecuted a single officer for perjury or filing a false report.
 

     DUI: The nature of the crime  (5:29)

     What is wrong with the present system of drunk driving laws and law enforcement?  (3:48)

     Are tougher DUI laws making it harder to defend a DUI client?  (5:49)

     What advice do you have for drivers who are stopped for a possible DUI?  (6:22)

     What are the most serious consequences of a drunk driving conviction?  (2:04)

     What are the best DUI defenses?  (3:26)

     Can you get a fair trial in a drunk driving case?  (3:28)

     How hard is it to get a DUI charge reduced?  (3:07)

     How can an attorney become more effective at defending DUI cases?  (2:08)

     You’ve created the term "the DUI Exception to the Constitution":  Do you see a growing loss of constitutional rights generally?  (3:26)

     What tips do you have for attorneys representing a DUI client today?  (2:33)

     How have you become the best-known DUI attorney in the country?  (2:58)

     Many years ago you decided to represent DUI clients exclusively:  Why?  (5:33)

The interview and taping was conducted by representatives from MyDUIAttorney.org.   
 

Deputies Get Quota for Hoopfest DUI Patrols

Spokane, WA.  June 26 – Spokane County sheriff’s deputies have been asked to contact at least three motorists per hour this weekend as part of extra impaired driving patrols…

A Washington State Patrol Cessna plane will be above the city today and Sunday to catch impaired reckless drivers.  When the plane isn’t up, the sheriff’s helicopter will be.

The sheriff’s office has scheduled extra patrols for impaired drivers and boaters.  Deputies have been asked “to make at least three motorist contacts per hour and to have a zero tolerance for impaired drivers.”…

So…Stop at least three citizens every hour on suspicion of drunk driving — whether there is any sign of impaired driving or not!  

There goes "probable cause" and the Fourth Amendment again:  the "DUI Exception to the Constitution".
 

In today’s news: 

DUI Charge Without Being Seen Driving
 
Albuquerque, NM.  June 26 – The New Mexico Supreme Court has ruled that cops can arrest someone for drunk driving, even if they never saw that person driving. The court’s ruling centers around a case from December of 2007.

A mall employee tipped off Santa Fe police about Marcos Martinez, saying he was drunk and tried to unlock several vans before finding his and speeding off.

By the time police tracked down Martinez, using his license plate number, he was already home.  Officers say Martinez was falling-down drunk when he came to the front door. The officer felt the hood of Martinez’s van, and it was still warm. 

The officer never saw him driving but arrested him anyway.

Martinez fought the DWI charge and the case was dismissed, but the state’s highest court decided his aggravated DWI charge should stand.

“It shouldn’t just be a free pass because you were able to beat the police home," Albuquerque Public Safety Director Darren White said, 

Gary Cade with the Bernalillo County District Attorney’s office explained this change in policy now means, “The police will handle DWI’s like they handle felony crimes.” 

He went on to say that cops won’t need to spend time getting a warrant…

Officials hope this decision will encourage even more people to report suspected drunk drivers. 

 
In other words, all misdemeanor offenses must meet legal procedures such as observation of the offense and the need for warrants — except drunk driving, which will be treated as a felony.  

Yet another in the unending examples of what I labelled "The DUI Exception to the Constitution" 20 years ago.