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Throughout the nation we see the advertisements; pictures of little children or teens about to embark on their adult lives. There are the cute pictures and then we see the caption, “Killed by a drunken driver”. Thousands of people die every year in traffic accidents. Too often, one is impaired by use of alcohol while driving, which contributes to yet another death of innocent bystanders. “During 2007, 12,998 people in the U.S. died in alcohol-related motor vehicle crashes, representing 31.7% of all traffic-related deaths (see chart below).” The term “drunk driving” is often used interchangeably and referred to as, “DUI” (driving under the influence), or “DWI” (driving while intoxicated).

 
“The technical definition of "driving under the influence" depends on individual state laws and is based on a person's blood alcohol concentration (BAC). This is determined either through a breath, blood, or urine test (which is usually conducted if drugs are suspected). Most states have set the legal BAC limit at 0.08 for people over age twenty-one. Some states allow a BAC of 0.10, although Congress has passed a national standard of 0.08 that links highway funds with compliance. Congress's actions were based on a significant body of research indicating that, at a BAC of 0.08, the average person's driving ability is impaired.” To combat this epidemic, private and public organizations have taken a proactive stance in deterring such catastrophic results.

Mother’s Against Drunk Driving (MADD), was established in 1981 by Candy Lightner (later to quit the organization and become a spokesperson for the liquor industry). This organization focuses on the affects of alcohol on users as well as families, including innocent third parties. Specifically, MADD continues to monitor a courts administration in relation to DUI/DWI related traffic cases. In doing so, MADD compiles statistics on how DUI/DWI cases are being handled. This information is gathered by the program and useful in determining how the legal system in relation to alcohol related cases may be improved. Such findings are often shared with those involved in the prosecution and adjudication process of the legal system, which in turn creates awareness of the public interest about the outcome of DUI/DWI cases. In addition, on April 6, 2006, “Mothers Against Drunk Driving (MADD) and The Miss America Organization launched a national partnership between MADD and Miss America 2006 Jennifer Berry. As a new MADD national spokesperson, Miss America will promote her platform Building Intolerance to Drunk Driving and Underage Drinking—the first of its kind in the history of Miss America.”

The National Commission Against Drunk Driving (NCADD), consists of both private and public organizations, as well as individuals, of which a common interest exists. In a joint effort, NCADD continues to work together by reducing impaired driving and its tragic consequences. Since 1981, every President of the United States has proclaimed December as National Drunk and Drugged Driving (3D) Prevention month.

Alcohol and Its Effects on the Body

Alcohol consists of a number of closely related natural (organic) chemicals. The different types of alcohol include ethanol, methanol, isopropyl, and propyl. Ethanol alcohol, of which grains and fruits are the most common source, is commonly referred to as ethyl alcohol and is typically ingestible, i.e., used in making alcohol beverages. However, ethyl alcohol may also be used for purposes in which consumption of the alcohol may be unsafe to the body, i.e., alcohol mixed with other substances used for industrial purposes. Ingestion of any methanol, isopropyl, and propyl alcohol may cause death or blindness.

The effects of alcohol to the body can vary depending on the amount of alcohol in the blood. This process, in which alcohol as a water-seeking-substance absorbs into the body, most severely affects the central-nervous-system in which the bodily functions are controlled. “First it destroys the integrating control of the brain which may cause thought processes to become disorganized and chaotic. The drinker may become confused and disoriented. In addition motor functions may become less fluid.”  Thus, there exists a direct correlation between the amount of alcohol an individual has ingested and the effect to their reactions and judgments, especially when operating a motor vehicle.

When a person is drinking an alcoholic beverage, alcohol is absorbed through the mouth and esophagus into the blood in a rather slow manner. The amount of food present in the body will determine the rate of absorption through the stomach, while the small intestines tend to absorb alcohol in very rapidly. Rate of absorption may vary depending on the individual; however, alcohol is ordinarily absorbed into the blood within 30 to 90 minutes of consumption. The following is a generally accepted guide to the effects of alcohol:

Stages of Alcohol Intoxication

In response to public concerns surrounding DUI, the National Highway Traffic Safety Administration (NHTSA) developed a number of field sobriety tests. These tests are helpful to law enforcement officials in determining the concept of divided attention. When operating a motor vehicle, a driver must perform a number of functions at once (divided attention tasks), including, steering, braking, and acceleration.

Two field sobriety tests that help in determining divided attention of a suspect, and which have been accepted in DUI cases are the Walk-and-Turn test (“The subject takes nine heel-to-toe steps along a line, turns, and takes nine heel-to-toe steps back. The officer is looking to see if the accused can keep their balance, follow instructions, begin early, stop during the test, leave space between heel and toe, step off the line, or lose balance while turning.”), and the One-Leg Stand test (“The accused is instructed to stand with heels together, arms at the side, then raise one leg six inches off the ground while counting out loud until the officer allows the accused to stop. The officer is looking for raising of the arms, swaying, hopping, putting the foot down, inability to stand still, body tremors, muscle tension, and any statements made by the accused during the test.”). These tests are helpful in examining the same mental and physical functions needed by a person operating a motor vehicle, i.e., information processing, short-term memory, judgment and decision making, balance, steadiness, sure reactions, clear vision, small muscle control, and coordination of the limbs.

 
When used in conjunction with divided attention tests, the Horizontal Gaze Nystagmus ("HGN") test helps law enforcement officials in determining whether a suspect may be impaired from the use of alcohol. This test examines the automatic tracking mechanisms of a suspect’s eyes’ by examining the involuntary rapid movement (“jerking”) of the eyeball, which may be horizontal, vertical, rotatory, or mixed. The effects of alcohol on the central nervous system which slows down the ability in processing information, also stimulates the nerve endings in the eye; this effect from alcohol hinders the eyes’ ability in rapidly tracking objects.  “The officer will position an object (such as a pen) 12 inches away from the driver's face, and move the object from side to side while watching the subject's eyes. The officer is looking for involuntary jerking or trembling of the eyeball. This jerking or trembling may be a sign that the subject has consumed an intoxicant.” The HGN test enables law enforcement officials to examine involuntary oscillation of the eyes in determining whether a suspect is impaired by alcohol.

The Breathalyzer is another field sobriety test of which law enforcement officials use in determining whether or not a suspect is impaired by alcohol. “Breath testing for alcohol is typically accomplished either on a roadside test prior to arrest, or on a more stationary machine at the jail following arrest. The portable device, which is a little bigger than a pack of cigarettes, is called a Preliminary Alcohol Screening (PAS) test, or Preliminary Breath Testing (PBT) device. In most states, the officer conducting the investigation is supposed to tell the DUI or DWI suspect that blowing into the PAS device is optional. In practice, this is done inconsistently, at best.”

The correlation between a person’s BAC and his breath alcohol content enables a reading of an individuals BAC. During inhalation, gas from the lungs is exchanged to the blood (primary oxygen), while during exhalation, blood is vaporized and released through the lungs in the exhaled breath. When an individual blows into a breathalyzer, the computer inside of the Breathalyzer multiples the amount of alcohol in a suspects breath sample by 2100 times to get the BAC. “In principle, this ratio is determined by simultaneously (or as close to simultaneous as experimentally possible) measuring the concentration of alcohol in the blood and expired alveolar air of test subjects administered alcohol under controlled conditions. While values in the scientific literature for this ratio range from 1900 to 2400, an international panel chose, in 1972 Essentially by fiat, the currently accepted value of 2100.” Handling Drunk Driving Cases,'7 (Breath Tests), Brent and Stiller (1985) at 133. This “partition ratio” is an assumption that the suspect’s blood has 2100 units of alcohol for every unit of alcohol in his breath. This is merely an average and may vary from as low as 900:1 to as high as 3500:1; this may vary, depending on the individual. Breath tests are admissible and the accuracy of the test may be challenged on any ground, Fuenning, 680 P.2d 121.

The Rhomberg Balance Test is a test where the driver stands while the officer looks for swaying, stumbling, and falling. Finger-To-Nose is when the driver begins with arms to the side, is instructed to touch their nose with the tip of the index finger, the tests checks the driver's peripheral vision and hand eye coordination. The Alphabet Test is when the driver is asked to recite the alphabet slowly, if the officer detects any loss of concentration that is signaled by not remembering what letter comes next. In addition, scientists are developing roadside saliva tests to measure blood alcohol.

How Alcohol Gets From the Blood into the Breath

Urine Tests

Urine samples, because of the wide array of problems and challenges, are generally thought of as the least reliable of the three types of chemical tests available. However, they are, in most states, only given as an option where a person is arrested of driving under the influence of drugs, not driving under the influence of alcohol.

Blood Tests

The most effective method for determining when a suspect is impaired is by estimating the amount of alcohol that has flowed through the blood vessels of the brain. To do so, blood samples (tests) are generally drawn from the arm. The most commonly used test used is called the dichromate oxidation method. This involves using a ready-made mix of chromium dichromate and sulfuric acid. When alcohol is combined with this solution, a reading gives the percentage of alcohol by estimating the BAC.

“Contamination from an alcohol swab, used to sterilize the area of the blood draw, can compromise the blood sample. Failure to properly mix the preservative and anti-coagulant in the blood sample can cause the sample to ferment, and literally create its own alcohol. Also, there is only one blood sample drawn (as compared with the usual two breath samples), so if there is a problem with that one sample, there are significant problems with the prosecution's case.”

Chain of Custody

It's important in how police departments handle evidence in proving a case against the suspect. This process, which is often referred to as chain-of-custody, is the documentation process required by many courts for admissibility of evidence. This gives assurance to the court that samples are collected by a neutral third party, such as a clinic or laboratory, that individuals tested are positively identified, and that samples are carefully tracked throughout the DNA testing process. At a minimum, most courts require that there be lot numbers on each and every product which indicates lab testing and quality control procedures. (14)
It's also important that this process is consistent; otherwise, this may lead to errors in which the defense may raise at trial, i.e., questioning the validity of the evidence submitted by the prosecution.

Proving the Prosecutors Case

In a DUI case, it is common for the prosecution to present a number of witnesses regarding scientific testing. Federal Rules of Evidence 702 permits an expert to give his opinion "if scientific, technical, or other specialized knowledge will assist the trier of fact..." In Kumho, the trial judge excluded expert opinion testimony as to tire design because he found it unreliable. The issue on appeal was whether 702 applies only to "scientific" matters? The court held, a trial judge's "gatekeeping" function is not limited by 702 to scientific matters, but applies to all expert testimony. Kumho Tire Co. v. Carmichael 526 U.S. 137 (1999) Since most states model their Evidence Codes after the Federal Rules, this decision was influential in how state courts would limit expert testimony — including in drunk driving cases, where "expert" testimony (such as by the police officer) on such non-scientific matters as "field sobriety tests" is common. Such expert testimony is often used to corroborate other evidence which also may be gathered in proving the states case against the defendant. Expert testimony includes, a blood-alcohol expert (forensic toxicologist), as well as a technician who drew blood from the defendant (phlebotomists). These experts are typically law enforcement employees from a government crime lab. The benefit of having such witnesses in a case enables the prosecution in helping explain such logistics to the jury. Typically, the forensic toxicologist will testify as to the results of the tests and what they mean, while elaborating on what the probable blood-alcohol level was when the defendant was driving. In addition, the expert will testify that the breathalyzer was properly maintained, calibrated, and in proper working order at the time of the test. A phlebotomists would testify to process and procedures used in drawing blood from the defendant. 
These types of expert testimony are crucial in the prosecutions case, and the validity of such testimony is critical to the outcome of the trial. However, as a law enforcement employee, this sort of testimony is often less honest and objective, while commonly tailored to help the prosecutor secure a conviction. “A DUI specialist with 30 years at the San Diego County Sheriff Department’s crime lab, it was Raymond Cole’s job to explain to judges and jurors how alcohol and drugs impair drivers and how the police measure levels of intoxication. That was before authorities found out Cole wasn’t who he claimed to be—a revelation that could mean a sizeable number of the convictions he helped secure may be overturned.” This is the sort of conduct that can often open the door for a defense attorney to question the validity of such expert testimony.

However, the prosecution typically merely relies on the police officer or someone else who talked to the defendant. This type of expert commonly referred to as a retrograde extrapolation, gives testimony as to testimony obtained from the suspect during the DUI stop, i.e., when the suspect drinking started and ended drinking, and when the person last ate. The prosecution is not required to produce a witness; however, the thought alone is often persuasive in getting convictions.

Defense Attorneys Theories on Beating a DUI

Many defense attorneys claim there are at least 30 different ways to "beat" a DUI, and include even more for opinion evidence of the field sobriety nature. These commonly used DUI defenses include:
1. Operator Error: In general, not following the operator's manual, which is sometimes countered by a good faith argument, but specific errors, like not following the 20-minute rule, cannot be overlooked.
2. Improperly Dedicated Power Source: the power circuit should be grounded and surge-protected. Also, there should be no cameras, microwaves, coffee pots, toaster ovens, or other electrical appliances that can cause "spikes" on the same circuit or even in the same room. Sometimes, defense attorneys will take a picture of the police room.
3. Radio Frequency Interference: RFI occurs when a component of the machine acts as an antenna. Also, no cellular or cordless phones should be used in the area at the time. However, testing device manufacturers have made great strides in producing equipment nowadays that locks out, checks, or otherwise controls for RFI.
4. Mouth Contamination: some of the things that cause early "spikes" in the readout are menthol tobacco (smokeless), mints, lozenges, denture adhesive, lip balm, breath spray, recent dental work, asthma inhalers, and pepper spray. If readouts are "spiking", a flatline or plateau in the readout indicates the desired alveolar air.
5. Environmental Contamination: some of the things in the air that cause "spikes" include solvents in the workplace (Brasso), hair spray, nail polish, and airplane glue.
6. Physical Condition of Suspect: a variety of things affect accurate readout, including:
I. Hyperventilation: being upset, crying, vomiting, for example
II. Sitting down and bending forward: this pushes air up from the stomach
III. Gastric reflux: if the suspect has gas or indigestion
IV. Diabetes: if the suspect's sugar levels are off
V. Liver malfunction or disease: as well as renal dysfunction
VI. Tuberculosis: TB can get trapped permanently in the machine
VII. Prescription drugs: Nyquil, Sinus medication, Antabuse, many others
VIII. Diet: if the suspect has been fasting or is on a high-protein regimen
IX. Body temperature: if because of illness or menstruation. The general rule is that a one degree elevation in body temperature equals an increase of .03% in BAC.

Conclusion

While it may appear that an individual is guilty of driving impaired, it is clear as in many cases, that the system is not perfect; thus, before slamming the gavel down, we must consider all factors before concluding guilt before innocence.

If you are under investigation or have already been charged for a crime or drunk driving offense, call 843-488-5000 or e-mail (help@coastal-law.com ) the attorneys at Coastal Law. They will give you an analysis of your case and your situation, which will allow you to take an important first step in defending the case against you.

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