Ok, you’ve had two glasses of wine with dinner and it’s time to head home. You feel fine, but throw down a couple of cups of coffee to clear your head just to be sure. Then you pay the bill, walk out to your car, get behind the wheel — and one block after pulling out of the parking lot you see flashing red lights in your rear view mirror. A couple of minutes later you find yourself struggling to walk heel-to-toe on a straight line.? Well, you think, I only had a couple of drinks.? A couple of drinks — and coffee…. Field sobriety tests are used by officers as evidence of whether an individual is under the influence of alcohol or not. These commonly involve such excercises as “walk-and-turn”, “finger-to-nose” and “one-leg-stand”. The greater the intoxication, in theory, the worse will be the performance on these tests. However, the truth is that these “tests” are highly unreliable and subject to such variables as the individual’s age, weight and athletic ability, the conditions under which the tests are given, the emotional state of the individual, fatigue, unfamiliarity with the tests, proximity to passing traffic, failure of the officer to communicate instructions, and many others. And then there is caffeine ….. Caffeine and alcohol have a synergistic effect — that is, they combine to produce an accelerated effect. Rather than sobering a person up, as is commonly believed, coffee can actually increase the symptoms of alcohol. The definitive studies were done by researchers in Great Britain and reported in an article entitled, “Interactions of Alcohol and Caffeine on Human Reaction Time”, appearing in the scientific journal Aviation, Space and Environmental Medicine 528 (June 1983). The conclusions of the scientists: “Alcohol has always been categorized as a central depressant and caffeine as a central stimulant. Therefore, it should follow that an antagonistic [counter-active] interaction should occur when these two drugs are ingested simultaneously. But as these results illustrate, this is not necessarily the case… “Caffeine has a synergistic interaction with alcohol…(It) has the effect of potentiating the detrimental effects already induced by alcohol….Motor skills which involve delicate muscular coordination and accurate timing have been found to be adversely affected by caffeine.” ? Result? Poorer performance on the field sobriety tests — and an arrest for DUI. ?

Ok, you’ve had two glasses of wine with dinner and it’s time to head home. You feel fine, but throw down a couple of cups of coffee to clear your head just to be sure. Then you pay the bill, walk out to your car, get behind the wheel — and one block after pulling out of the parking lot you see flashing red lights in your rear view mirror. A couple of minutes later you find yourself struggling to walk heel-to-toe on a straight line.? Well, you think, I only had a couple of drinks.? A couple of drinks — and coffee…. Field sobriety tests are used by officers as evidence of whether an individual is under the influence of alcohol or not. These commonly involve such excercises as “walk-and-turn”, “finger-to-nose” and “one-leg-stand”. The greater the intoxication, in theory, the worse will be the performance on these tests. However, the truth is that these “tests” are highly unreliable and subject to such variables as the individual’s age, weight and athletic ability, the conditions under which the tests are given, the emotional state of the individual, fatigue, unfamiliarity with the tests, proximity to passing traffic, failure of the officer to communicate instructions, and many others. And then there is caffeine ….. Caffeine and alcohol have a synergistic effect — that is, they combine to produce an accelerated effect. Rather than sobering a person up, as is commonly believed, coffee can actually increase the symptoms of alcohol. The definitive studies were done by researchers in Great Britain and reported in an article entitled, “Interactions of Alcohol and Caffeine on Human Reaction Time”, appearing in the scientific journal Aviation, Space and Environmental Medicine 528 (June 1983). The conclusions of the scientists: “Alcohol has always been categorized as a central depressant and caffeine as a central stimulant. Therefore, it should follow that an antagonistic [counter-active] interaction should occur when these two drugs are ingested simultaneously. But as these results illustrate, this is not necessarily the case… “Caffeine has a synergistic interaction with alcohol…(It) has the effect of potentiating the detrimental effects already induced by alcohol….Motor skills which involve delicate muscular coordination and accurate timing have been found to be adversely affected by caffeine.” ? Result? Poorer performance on the field sobriety tests — and an arrest for DUI. ?

Drunk driving is bad.? It’s potentially dangerous to human life.? It should be punished.? So, many years ago a law was passed:? “Thou shalt not drive drunk”. It was a fair law and it addressed the problem.? So…what happened?? Why do today’s laws punish drivers when they are neither “drunk” nor “driving” — nor even in a “vehicle”?? “Drunk” ? The original laws prohibited driving a vehicle “under the influence of alcohol” — commonly referred to as “DUI”.? In some states, it’s called “DWI” (driving while intoxicated) or “OUI” (operating under the influence).? In other words, the accused had to be (1) driving (2) a vehicle (3) while intoxicated to the extent that he or she was unable to safely operate it. This changed a few years ago with the passage of so-called per se laws.? Prosecutors and groups like MADD were frustrated with the difficulties in proving that a driver was, in fact, under the influence.? So legislators, anxious for re-election endorsements from prosecutors, police and MADD, passed a new law: “Thou shalt not drive with a blood alcohol level of .10% or more.” Well, this made it much, much easier to convict citizens suspected of drunk driving.? First, prosecutors no longer had to prove that a driver was impaired in his judgment, reflexes, perception and coordination.? All they had to do was produce a number: .10%.? Never mind that the American Medical Association conducted studies and announced in 1938 that a driver was only “impaired” at .15%.? Never mind that MADD was later successful in getting the number reduced further down to .08% (and is lobbying for further reduction to .05%).? And never mind that every person’s tolerance to alcohol varies widely — that some drivers may be under the influence at .07%, while others may not be intoxicated at .11%.? The law was no longer interested in whether the driver was a danger or not: the crime was in having alcohol in your body. The second reason the new per se laws were wildly popular with prosecutors, police and MADD was that the arrested citizen could now be charged with both crimes — DUI and .08%.? This had two big advantages.? First, it gave the prosecutor two shots at the defendant; if he didn’t get him for one, he might get him for the other.? Second, it gave juries that were unsure of the defendant’s guilt an option: convict him of one charge but acquit him of the other.? Juries that were not unanimous could use this as a compromise — even if some jurors felt the accused was not really proven guilty. Just to make it even easier, many courts have followed the California Supreme Court in ruling that the breath alcohol reading cannot be questioned on the grounds that it does not accurately reflect the alcohol actually in the person’s blood.? See Bransford v. California .? (One dissenting justice in that case, less concerned with politics than with common sense, wrote: “The majority…has on its own created the new crime of driving with alcohol in one’s breath.”) “Driving” ? The second half of drunk driving is…”driving”.? This would seem obvious: how can you be driving under the influence if you’re not…well, driving ? No problem.? If you have judges who do not want opposition from prosecutors, police and MADD at the next election, you will have strange judicial interpretations of what “driving” means.? And in recent years there have been a flood of judicial interpretations which stretch the meaning has been tortured beyond recognition.? A couple of examples: Sleeping in (or near) the car.? See my posts Sleeping Under the Influence , How to “Drive” Under the Influence While Sleeping , Convicted of Drunk Driving Without Driving and When Does the Insanity End? Sitting in a parked car.? See Parking Under the Influence and Sitting in a Parked Car ? ” Vehicle ” Just as the judges stretched the meaning of “driving” beyond the limits of credulity, so they also expanded the definition of what constituted a “vehicle”.? Now, a “vehicle” is commonly understood to mean a car or truck, and so it has been applied for decades.? But this, too, has been slowly expanded to include such “vehicles” as: Bicycles.? See my posts DUI on Bicycles , Felony DUI Bicycle and DUI?While Walking a Bicycle Lawn mowers.? See More News From the Front and The “War on Drunk Driving” Marches On Horses. See DUI on a Horse Wheelchairs.? See DUI in a Wheelchair Toy bikes.? See DUI on a Foot-High Toy Bike ? Golf carts.? See The War on Drunk Driving Continues Zamboni ice machines.? See News From the Front As Humpty Dumpty explained to Alice so many years ago: ? “When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.” “The question is”, said Alice,”whether you can make words mean so many different things.” “The question is”, said Humpty Dumpty, “which is to be master — that’s all.” We used to have laws punishing drunk drivers. They were good laws, designed to protect citizens.? Whatever happened to them? ?

Test

It is an unfortunate fact that law and politics repeatedly trump science when it comes to prosecuting citizens accused of drunk driving….. In People v. Bransford , to cite one notable example, the California Supreme Court was confronted with a defendant who was challenging his DUI conviction on the grounds that he was not permitted to offer scientific evidence to the jury. Specifically, he was not permitted to offer the testimony of recognized experts that the breath machine’s computer was programmed to assume that there were 2100 parts of alcohol in his blood for every 1 part it measured in his breath. He was also prevented by the trial judge from offering further evidence that this 2100:1 ratio was only an average — and that the actual ratio varied widely from person to person, and within one person from moment to moment. (If, for example, a suspect’s ratio had been 1500:1 at the time he blew a .10% on the machine, his true blood-alcohol would have actually been .07% — that is, he?would have been?innocent.) The Supreme Court of California affirmed the conviction, however, ruling that such scientific facts are irrelevant: the law was recently re-written in a way that concerned?the amount of alcohol in the blood?” as measured on the breath ”. In a display of either twisted logic or ignorance of the scientific facts?involved, the Court simply said that the crime consisted of the amount of alcohol in the blood — but only as measured on the breath . In other words, although the crime is having .08% alcohol in the blood,? you can’t offer evidence about the amount of alcohol actually in the blood ! An amazing decision. More interesting, perhaps, is language in the opinion — an opinion which gives us a window into the justices’ minds. In what must have been a complete failure to appreciate the significance of what?they were writing, the Court justified its ruling in a rather frank — and incredible — admission of its?hidden agenda: It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges.? People v. Bransford , 8 Cal.4th 894 (1994). In other words,?preventing?an accused?from defending?himself with scientific truth serves justice by making it easier to get convictions! Are all judges oblivious to the truth? Not entirely. One judge, Justice Joyce Kennard, dissented from the majority opinion. Recognizing the truth, she wrote in a dissenting opinion:?? The majority…has on its own created the new crime of driving with alcohol in one’s breath. She was dead right. ?

When a person is arrested for DUI, his driver’s license is confiscated by the arresting officer and he is given a notice of “administrative suspension”. He is also given a citation to appear in court to face criminal drunk driving charges. These are usually two very different procedures: (1) the administrative suspension for driving with?blood-alcohol of .08%, in most states administered by its department of motor vehicles, and (2) the criminal prosecution for the two separate offenses of driving under the influence of alcohol (DUI or DWI) and driving with .08%,? which takes?place in the courts. Let’s take a closer look at that second?proceeding, the criminal charges?in the courts….The accused allegedly engaged in a single act of driving.? Yet, he is being?prosecuted?in court for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses (although he can only be punished for one). How is this possible? But what about that first proceeding? The driver has already been punished by another state agency (the DMV) for driving over .08% by having his license suspended (or for refusing to take a chemical test). If he is later convicted in the state’s criminal court of driving over .08% (and/or driving under the influence), he will be punished a second time . The sentence may involve jail, fines, DUI schools, ignition interlock devices, community work, probation — and a second?restriction or suspension of his license. How many times can the state?prosecute and punish a person for a single crime? Our Constitution says only once. The Fifth Amendment specifically provides that no person shall ” be subject for the same offense to be twice put in jeopardy of life and limb”. So is this another example of ” The DUI exception to the Constitution “? Let’s first take the question of charging defendants with both DUI and .08%. The courts in the different states wrestled with this one for awhile, coming to different conclusions, but eventually reached a consensus that the driver actually commited two different crimes. As an Indiana court reasoned, “The test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of a fact which the other does not”. Sering v. State , 488 N.E.2d 369 (1986). The .08 statute required proof of blood-alcohol concentration; although blood-alcohol evidence was used to prove the DUI crime as well (a person is usually presumed to be under the influence if his BAC is .08% or higher), the offense could be proved without it. So it’s ok to prosecute and convict him for both crimes – so long as you?don’t?punish him for both.? Hmm….isn’t that just word?games?? Defining a single act in different ways?? Couldn’t you define it ten different ways and get ten different crimes to?charge the citizen with?? And what about that first license suspension???What about punishing the driver by suspending his license when he’s arrested — and then punishing him again in court? In fact, punishing him in court with a sentence that?probably includes another license suspension? This one caused the?appellate courts a bit more trouble. This wasn’t a case where the person was committing two different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC. But there had to be some way to get around that pesky?Constitution. The courts could not agree. Some said that there was no double jeopardy or double punishment since the DMV license foreiture was not really a punishment, but only a civil sanction . Others took the position that this was, in fact, a violation of the Fifth Amendment, and they relied upon a 1989 U.S. Supreme Court decision ( U.S. v. Halper , 490 U.S. 435) which involved civil forfeitures and criminal punishments for selling marijuana. In that case the Court held that a “civil sanction’ was actually a punishment? ‘and thus double jeopardy’ if (1) the clear focus of (the statute) is on the culpability of the individual, and (2) the legislature “understood these provisions as serving to deter and punish”. The Court added that “the historical understanding of forfeiture as punishment” weighs heavily in favor of the conclusion that forfeiture continues to serve punitive purposes. Well, relying upon the Supreme Court’s ruling, an alarming number of courts around the country were throwing out criminal DUI charges on double jeopardy grounds. This, of course, infuriated MADD, legislators, prosecutors, law enforcement and pretty much everyone else who did not take the Constitution too seriously. But?help arrived? from a more conservative U.S. Supreme Court. In 1997, Chief Justice Rehnquist revisited the forfeiture-punishment problem and did something that is rarely ever done: he criticized and flatly rejected the earlier Supreme Court’s ruling: “We believe that Halper ’s deviation from long-standing double jeopardy principles was ill-considered.? Halper ’s test for determining whether a particular sanction is “punitive”, and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable.” Hudson v. U.S ., 592 U.S. 93 (1997). Unworkable? Since then, the courts have had little trouble finding that a police officer who confiscates and suspends the driver’s license of a drunk driving suspect is merely administering a civil sanction, not punishment, and that when he is later convicted in court and is fined, jailed and has his license suspended again, well, that’s not really double jeopardy or multiple punishment. It just looks an awful lot like it. Somehow, the words of Lewis Carroll keep coming to mind: ? “When I use a word”, Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.” “The question is”, said Alice, “whether you can make words mean so many different things.” “The question is”, said Humpty Dumpty, “which is to be master, that’s all.”

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So you got stopped last night and arrested for drunk driving. And right after the Breathalyzer showed a blood-alcohol reading of .09%, the officer confiscated your driver’s license and gave you an official notice of immediate suspension. “What happened?”, you ask. Can they do that? I thought I was presumed to be innocent, and the state had to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about “due process”: Can they suspend my license for DUI before giving me a chance to defend myself? Good questions. The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) DUI who (1) has a .08% breath reading, or (2) takes a blood or urine test, or (3) refuses to take any test. This means immediately — on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you. Viewed another way, the officer in a DUI case is cop, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it! So, again: How can they do that in America? Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called “APS” laws (the phrase stands for “administrative per se”, referring to the “per se” crime of .08%, as opposed to the crime of driving under the influence of alcohol, which is for the courts). They justified this by saying that a license was a “privilege”, not a “right” — and since the license holder had no rights, the state could do what it wanted. Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And “due process” simply means fairness — a fair procedure by which he can contest the confiscation of his property. The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.) MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced states into adopting APS suspensions — or else no funds. ?Do these APS hearings in DUI cases provide due process? In other words, how fair are they? Let’s take California’s APS hearings. They are conducted by a “hearing officer”. Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate. So who is the prosecutor? He’s, well…the same guy. That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can introduce his evidence against you and then make objections to your evidence — and sustain his own objections! And eventually decide whether you win or he does! What is the DMV’s evidence?? In California, it’s a brief printed form signed by the arresting officer — i.e., the entire case is hearsay .? So doesn’t the Constitution give the accused a right of confrontation — the right to cross-examine his accuser?? Well, if you want to cross-examine him, you have to subpoena him yourself — often a difficult procedure.? Oh, yes…and you have to pay his salary for his time (usually overtime). Not too surprisingly, the DMV wins about 96% of these DUI hearings. That’s called “due process” in a drunk driving case. ?

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