California Criminal Lawyer Blog

Zero-tolerance laws were introduced in the early 1980s in reaction to the high level of teenage drunk driving injuries and deaths across the country. Because of the seriousness of teen drunk driving and in response to federal financial incentives, all states have now implemented zero-tolerance laws. Zero-tolerance laws have two components. The first component is Illegal per se laws; per se means in and of itself. This means that if a minor under 21 years of age is caught driving with a negligible percentage of alcohol in his or her blood, they will be arrested for a DUI immediately.

Some states will charge a minor with a DUI if the blood alcohol limit is over 0.00 percent. Most states set their zero-tolerance laws at 0.02. This is different from the laws for adults where a 0.08 level of alcohol is required for a DUI. The second component of the zero-tolerance laws is the administrative per se laws. This means that if the minor is caught driving with any level of alcohol in the system, their license will be automatically suspended or revoked by the Department of Motor Vehicles (DMV) or the Registry of Motor Vehicles (RMV).

These penalties are in addition to whatever penalties the court imposes. Zero-tolerance laws have been subject to criticism by people who believe that the laws unfairly punish minors who may be bringing home an intoxicated friend. However, zero-tolerance laws have proven to be an effective sanction for minors, and since they have been implemented, the rate of teenage deaths and injuries in automobile accidents has gone down. Having a license is after all, the ultimate statement of independence for many teens.

Consequences of Teenage DUI Convictions

Punishments for teenagers that are found guilty of a DUI vary by state, but are generally harsher for first time offenders than are punishments given to adult first time offenders. This is because minors face penalties for both underage drinking and for driving under the influence. If the minor's blood alcohol content (BAC) is anywhere from 0.05 - 0.07 percent and above, they can be charged with underage DUI and an adult DUI, which can increase the penalties further.

Often other charges will accompany the DUI offense, such as violation of Child Endangerment Laws, minor in possession of alcohol, possession of an altered or fictitious ID card, soliciting alcohol from an adult, and distributing alcohol to other minors. In most states, the minor's DUI will be charged as a class one misdemeanor, which will remain on their record as an adult. The court may also impose community service as a punishment and up to thousands of dollars in fines. The teen's license may also be suspended for up to two years and many states will require the minor to submit proof of financial responsibility before their license is reinstated.

Jail Time and other Penalties for Teen DUI

In some states, a teen DUI conviction can result in up to one year in jail for a first offense. Minors that have been caught drunk driving more than once, as well as minors who are involved in drunk driving accidents, will always receive a jail sentence. Sentences range from a few days to several years, depending on the severity of the case.

A teen DUI conviction can also result in probation for a period of 3-5 years. The minor may also be ordered to undergo a diversion program, such as Mothers Against Drunk Driving (MADD) or other drug and alcohol education classes. If the minor's BAC is especially high, he or she may have to complete an inpatient alcohol treatment program.

After the teen or minor has his license reinstated, he or she may still have to drive under the watchful eye of the courts. In these cases, the court may order the minor to install an ignition interlock device on his or her car or on the car that the minor drives the most frequently. This will have to be done at the minor's own expense.

In some cases, the court may choose to impound the car, instead of requiring an ignition interlock device. Further, hardship or conditional licenses are not as widely available for minors convicted of DUIs. A hardship or conditional license is granted in cases where the convicted must drive his car in order to commute to work and school. These types of licenses allow the convicted minor to drive to locations approved by the courts, and nowhere else.

Consequences for Refusing Alcohol Testing in Suspected DUI Stops

Minors that refuse to submit to alcohol testing may lose their license for up to three years in some states. This is because most state laws use the implied consent principle, which says that once you are given a license to drive on public roads and highways, you implicitly give your consent to be tested for sobriety. Refusal to submit to testing is often seen as an admission of guilt. Further, this may not prevent a DUI charge, since the police can use other evidence to show that the teenager was under the influence, such as erratic driving or the smell of alcohol in the minor's breath.

What this means is, if the minor refuses to submit to testing and is convicted of a DUI, he or she will receive a consecutive license suspension for both offenses. In most states, minors that refuse to submit to testing face the same legal and social consequences as an underage DUI.

Other Consequences of Teenage Drunk Driving Convictions

Aside from the harsh criminal and civil penalties given for an underage DUI, there are grave social consequences for a minor convicted of a DUI. A minor who is convicted of DUI must disclose this information on all college applications. This may not prevent the minor from getting into college, but it will certainly be a strike against them. Failure to list the DUI on the application can result in automatic dismissal if the college later learns of the DUI.

In many states, students that are convicted of DUIs cannot continue their majors in education or pre-law. Further, starting a career with a DUI conviction may be difficult for the minor. Many jobs ask applicants to list any prior convictions. Since most states classify a DUI conviction as a Class 1 misdemeanor, the minor's record will be blemished well into adulthood.

While a prior conviction will not be an absolute bar to employment, it may sometimes sway an employer's decision to hire them. A civil judgment against a minor can also last years, meaning that their future wages can be garnished. The teenager may also face social stigma as well and incarceration could mean a loss of employment and educational possibilities.

Getting Help

While the punishments for underage drinking and teanage drunk driving are tough, it is important to know that the minor still has the same rights in the legal system as adults. This means that the prosecutor must show all the elements of the charges, including that the minor was driving and that the stop was for a legitimate reason. Because of the penalties and life consequences that a DUI will have for a minor, it usually makes sense to try and fight the DUI in court.

Ethanol, or ethyl alcohol (grain alcohol), is one of the earliest and most widely used drugs in existence. It is a clear fluid whose low molecular weight and high solubility in water cause it to diffuse rapidly through body tissue membranes and reach equilibrium in tissues at levels proportional to water content. Blood, for example, will hold proportionately more alcohol than will muscle tissue.

The concentration of alcohol in a DUI suspect's body depends on the amount of water contained in that body. The more water present in the body, the more diluted the alcohol will become as it is absorbed into the system. And the simple fact is that individuals vary according to the percentage of water that exists in their bodies.

In a study entitled Pharmacokinetics of Ethanol in Plasma and Whole Blood: Estimation of Total Body Water by the Dilution Principle, Jones, Hahn, and Stalberg, 42 European Journal of Clinical Pharmacology 445 (1992), researchers confirmed that the body water content varies from person to person. The content in men, interestingly, decreases with age - that is, the blood-alcohol concentration will become higher. Further, where an individual has experienced trauma, as in an automobile accident, the body's percentage of water will decrease. The same can also happen due to pathological conditions, as in persons with diarrhea, heart failure, or impaired renal function.

For alcohol to produce its effect, it must reach the brain. To accomplish this, it first passes into the bloodstream after absorption through the walls of the stomach and small intestines. This is a simple biochemical process of diffusion, which will continue as long as the concentration of alcohol in the stomach and intestines is higher than that in the blood.

In contrast to ordinary foods and many drugs, alcohol is absorbed rapidly from the stomach and even more rapidly from the small intestine just beyond the stomach. In fact, the presence of alcohol is initially detectable about five minutes after consumption, and its maximum concentration within the body tissues is achieved in somewhere between 1/2 hour and 1 1/2 hours. This rate of absorption in DUI cases can be accelerated if the subject has ingested significant amounts of water or materials containing water, and it can be slowed down if he has eaten food. The type of alcoholic beverage can also be a factor: beer will cause a slower increase in blood-alcohol concentration than distilled spirits, as well as a lower peak level and faster decline. Absorption is complete when the entire gastrointestinal tract reaches equilibrium with the remainder of the body; this can take as long as 21/2 hours but commonly occurs within 30 to 90 minutes. In any event, the rate of absorption of alcohol in a DUI case - and, as a result, the effect on the nervous system - varies according to the individual.

Like the Intoxilyzer 5000 and Intoximeter 3000 commonly used throughout California, the Datamaster operates on the principle of infrared analysis. And as with those devices, the machine is subject to all of the flaws of infrared analysis-nonspecificity.

The designers of the Datamaster, opted for the faster and cheaper infrared method of analysis, hoping to minimize the problem of lack of specificity by utilizing two wavelengths. The microcomputer was integrated to control sequencing, calibration and self-checking, making it easier to use and less susceptible to operator error. Additionally, the software can be custom-designed to meet the requirements of a given jurisdiction or the specific needs of an agency.

The detachable breath tube contains a sealed wire-wrapped antenna for the purposes of detecting radio frequency interference. Further, the manufacturer offers two options:

1. An "external alcohol simulator standard pump outlet" for purposes of testing the accuracy of the machine.
2. A sample preservation system -- a mechanism for inserting a vial to capture and preserve a second breath sample for subsequent analysis, either for double-checking or for defense testing.

Subsequent to production of the BAC Verifier, Verax Systems designed the BAC Verifier DataMaster -- primarily for use in Washington State. The principle of operation for the DataMaster is the same as for its parent machine; the differences lie in the changes made to comply with the state's bidding requirements. The case of the Datamaster is metal, for example, while the original machine is plastic impregnated with metal; this was done, in theory, to reduce the chances of radio frequency interference. Other changes include a different printer to provide multiple copies of the evidence ticket; a different layout of the printed circuit boards to make the machine easier to maintain and repair; a new central processing unit (CPU) to inhibit the electrical interference previously noticed in the poorly designed circuitry of the original Verifier; significantly different data collection and storage software -- most notably, changes in the formula used to calculate the presence of acetone in a breath sample and in the previously defective "erasable programmable read only memory" (EPROM) used to calculate BAC; and changed breath-tube mounting.

Two interesting observations can be made about the Datamaster. First, the changes required by Washington State clearly indicate rather significant deficiencies in the existing Verifier used in other parts of the country. Second, the Datamaster itself has encountered problems: Eight of the first machines received had to be returned because they failed to meet specifications; twenty-five have had to be repaired because of a variety of problems. Common problems included inaccurate readings because of meter valve instability, failure to detect the presence of acetaldehyde and false readings caused by infrared lamp instability.

The Verifier/Datamaster has a number of components that are very sensitive to temperature change..

1. The simulator solution, as with any breath machine, must be kept at 34 degrees centigrade, plus or minus .02; a decrease of one degree will cause a 6.8 percent decrease in the amount of alcohol, resulting in a falsely higher BAC reading for tested breath samples. A thermometer attached to the simulator is supposed to be checked by the operator.
2. The sample chamber must be heated to exactly 50 degrees; this is supposedly monitored by the machine's computer.
3. The detector must be cooled almost to freezing; this is also theoretically monitored by the computer.
4. The breath tube must be heated to 50 degrees. If not properly heated, condensation can form in the tube; this can capture alcohol during a test, which will be picked up by later breath samples. Despite the need for a 50 degree temperature, the Operator's Manual tells the operator only to "check that the mouth piece is warm to the touch."
It is also of interest that the Verifier/Datamaster's Service Guide lists the following possible error messages on the LCD display. Note, incidentally, that there is nothing to indicate that the computer is malfunctioning, such as by not detecting and reporting the following malfunctions.
• Temperature Low
• Temperature High
• Printer Error
• CRC Error
• Pump Error
• System Won't Zero

This last entry is followed by the notation that, "It is possible that there may be physical blockages of the IR (infrared) energy along the path from Source to Detector..... Possible causes of blockage:

• Simulator solution in sample chamber. This can occur if the simulator is hooked up to the instrument incorrectly.
• Cracked windows or mirrors.
• Chopper wheel not turning.
• Condensation or fog building up on windows or mirrors due to leakage in the system.
• Any other foreign material in sample chamber.

The Service Guide then continues with a list of what it terms "functional errors"; that is, malfunctions for which there are no error messages to alert the operator:

• No Breath Tube Heat
• Blinking Stops, But No Sample
• Instrument Samples Early, By Itself
• Blinking Does Not Stop When Instrument is Blown Into
• Supervisor Buttons Don't Function
• Difficult or Impossible to Blow Into Instrument
• Improper Operation of Pump
• No Display
• "Not Calibrated"
• Printer Runs Continuously
• MTR Button Doesn't Function

The Operator's Manual adds a few more ways the BAC Verifier/Datamaster can malfunction:

• Invalid Sample (the manual reads "mouth alcohol is being detected, subject is not providing a proper sample, or the instrument is out of adjustment"--but does not indicate which )
• RFI
• Calibration Error--Fatal Systems Error

These, the manuals stress, are only the more common sources of error possible with the Verifier/Datamaster. The Service Guide adds the following interesting comment: "If your instrument exhibits a symptom that is not identified in this guide, please notify us so that we may update our symptom information library" (emphasis added). This for two reasons:

1. There is an entire library of things that can go wrong with this machine!
2. The manufacturers are not even aware of some things that can go wrong: They are soliciting information about newly discovered defects for their presumably ever-growing library. What malfunction will be discovered next!

It is also interesting to note that the Verifier/Datamaster has an internal self-checking diagnostic system, run by its computer. Of course, garbage in equals garbage out, but in theory such a readily available diagnostic check might detect malfunctions in the machine. Yet these checks are performed only periodically and not before each test. Despite the fact that such a check would detect, for example, whether the critical temperature of the sample chamber is 50 degrees, such a check is almost never done immediately before or after a DUI suspect is tested.

There are more problems that are associated with any breath testing machine that use infrared absorption. Call us to find out more about problems associated with Breath testing.

One of the greatest sources of error in blood-alcohol testing is the consistently recurring fallacy that the individual tested is perfectly average in certain critical physiological traits. Put another way, obtaining an accurate blood-alcohol reading is completely dependent on the validity of a number of scientific assumptions. Unfortunately for the person being tested, these assumptions are usually incorrect: The person tested is rarely "average" in even one of these critical characteristics, let alone in all of them.

For example, all breath testing devices depend on the assumption that the partition ratio between alcohol in the exhaled breath and alcohol in the blood is 1 to 2100. In fact, the breath alcohol machine is designed to produce a reading based on that assumption; the accuracy of the reading is directly tied to the accuracy of the presumption. The actual ratio in any given individual can vary from 1:1300 to 1:3000, or even more widely. Thus a person with a true blood-alcohol level of .08 but a breath-to-blood ratio of 1:1700 would have a .10 reading on an "accurate" breath testing instrument.

Put simply, these machines do not test individuals. Rather, they test the average person over and over again, but using the subject's breath.

Yet another example of the assumption of "averageness" can be found in urinalysis. When a subject's urine is analyzed for blood-alcohol, a presumption exists that there are 1.3 parts of alcohol in the bladder's urine for every 1 part of alcohol in the blood. The actual ratio found in any given individual can vary greatly. And as the ratio is in error, so will be the final blood-alcohol reading.

Another example of this constant reliance on averages shows itself when the prosecutor offers evidence of retrograde extrapolation (assumption that blood-alcohol levels drop after you stop drinking). The blood-alcohol level at the time of testing is not relevant to the charge, of course and so the state will offer evidence to show what the level was when the defendant was driving. This is commonly done by computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or "burned off" in the time between driving and testing. But this requires two assumptions:

1. The blood-alcohol level was declining and the rate of elimination is known.
2. That the "burn-off" rate was .015 percent per hour.

How does the prosecution know that the defendant was eliminating (assuming he was eliminating) at that rate and not at .005 percent or .3 percent! Quite simply, the prosecution does not know: It merely assumes that the defendant eliminates at the average rate. And, of course, error in such an assumption translates into error in the extrapolation.
This ubiquitous "average person" in the DUI arena is not limited to chemical analysis. We even find him with the arresting officer in the field. When the officer administers the increasingly common "horizontal gaze nystagmus'' test as part of the battery of field sobriety tests, he operates on the assumption that the suspect is "Mr. Average." The officer has been trained to "read" at what angle the suspect's eyes begin jerking. A blood-alcohol reading can theoretically be obtained by subtracting the angle from 50; jerking at 35 degrees, for example, would mean the suspect has a blood-alcohol level of .15 percent. Where does the magic figure of 50 come from? The average person.

An alternative method of administering the nystagmus test is to "flunk" the person if jerking begins before 40 or 45 degrees. Why? Again, because the average person would theoretically have .10 or .05 percent alcohol in his blood at this point.

In either test, of course, we do not know what the individual's actual "baseline" is--that is, the angle at which his eyes would begin jerking if he were sober. In both cases, the individual is assumed to be physiologically identical to the theoretical "average" person.

It is doubtful that there will ever be a drunk driving case in which the officer is not prepared to testify that the defendant had "an odor of alcohol" on his breath (breath-alcohol). If the arrest report does not indicate such an odor, then the individual will undoubtedly be booked for and subsequently charged with, driving under the influence of drugs. Quite simply, alcohol on the breath is the one observation that will always be encountered in the DUI case.

It is also one of the more damaging. Unless the odor can be explained or minimized, the jury will inevitably conclude that "where there's smoke, there's fire": alcohol on the breath means alcohol in the body and that means a drunk driver.

There are two effective courses of attack:
1. question the source of the smell
2. question the conclusion of intoxication (or question both)

The important point to be noted is that alcohol has little or no odor. The officer is not smelling an "odor of alcohol" on the client's breath, but rather the odor of the flavoring of the drink (scotch, beer, gin, wine). The odor of the flavoring can be deceptive as to both the strength of the drink and the amount consumed. Beer and wine, for example, will leave the strongest "odor of alcohol" on the breath, yet they are the least intoxicating of beverages. A single can of beer can leave a stronger odor than three or four martinis.

One very effective way of illustrating the point that ethanol (alcohol) has no odor is the consumption of near beer. Near beer is a nonalcoholic beverage made from grain, malt, hops and yeast and which looks, smells and tastes like regular beer. What is the effect? The person drinking near beer will have "an odor of alcohol" on his breath, despite having consumed no alcohol at all!

What is the point of all this? The point is simply that since the intoxicating element, alcohol, has no odor, the presence of an odor tells us only that a beverage normally associated with the presence of alcohol has been consumed in the relatively recent past. More important, it does not tell us how much alcohol has been consumed. There is no correlation between the amount of alcohol consumed and the odor, and certainly none between the amount and the strength of the odor. Again, beer is among the least intoxicating of beverages and yet leaves a strong odor on the breath.

It is doubtful that there will ever be a drunk driving case in which the officer is not prepared to testify that the defendant had "an odor of alcohol" on his breath (breath-alcohol). If the arrest report does not indicate such an odor, then the individual will undoubtedly be booked for and subsequently charged with, driving under the influence of drugs. Quite simply, alcohol on the breath is the one observation that will always be encountered in the DUI case. It is also one of the more damaging. Unless the odor can be explained or minimized, the jury will inevitably conclude that "where there's smoke, there's fire": alcohol on the breath means alcohol in the body and that means a drunk driver. There are two effective courses of attack: 1. question the source of the smell 2. question the conclusion of intoxication (or question both) The important point to be noted is that alcohol has little or no odor. The officer is not smelling an "odor of alcohol" on the client's breath, but rather the odor of the flavoring of the drink (scotch, beer, gin, wine). The odor of the flavoring can be deceptive as to both the strength of the drink and the amount consumed. Beer and wine, for example, will leave the strongest "odor of alcohol" on the breath, yet they are the least intoxicating of beverages. A single can of beer can leave a stronger odor than three or four martinis. One very effective way of illustrating the point that ethanol (alcohol) has no odor is the consumption of near beer. Near beer is a nonalcoholic beverage made from grain, malt, hops and yeast and which looks, smells and tastes like regular beer. What is the effect? The person drinking near beer will have "an odor of alcohol" on his breath, despite having consumed no alcohol at all! What is the point of all this? The point is simply that since the intoxicating element, alcohol, has no odor, the presence of an odor tells us only that a beverage normally associated with the presence of alcohol has been consumed in the relatively recent past. More important, it does not tell us how much alcohol has been consumed. There is no correlation between the amount of alcohol consumed and the odor, and certainly none between the amount and the strength of the odor. Again, beer is among the least intoxicating of beverages and yet leaves a strong odor on the breath.

How effective are these highly touted field sobriety tests? Consider the research funded by the National Highway Traffic Safety Administration (NHTSA), which resulted in the later adoption of the so-called "standardized" field sobriety tests. In a 1977 study, researchers determined that the three most effective field sobriety tests (FSTs) were walk-and-turn, one-leg stand, and horizontal gaze nystagmus. Yet, even using just these supposedly more accurate tests, the researchers found that 47 percent of the subjects who would have been arrested based upon test performance actually had blood-alcohol concentrations of less than the legal limit of. 10 percent. In other words, almost half of all persons 'failing" the tests were not legally under the influence of alcohol! Burns and Moskowitz, Psychophysical Tests for DWI Arrest: Final Report, DOT-HS-802-424, NHTSA (1977).

In 1981, these same researchers conducted further tests in an attempt to improve the credibility of the proposed "standardized" battery of FSTs. The error rate improved somewhat: The false results dropped to 32 percent-i.e., "only" a third of all persons judged to be guilty by these tests were, in fact, innocent. Tharp, Burns, and Moskowitz, Development and Field Test of Psychophysical Tests for DWI Arrests: Final Report, DOT-HS-805-864, NHTSA (1981). Critics of this second "study," however, point out that the "reliability coefficients" for this self-serving research were far below accepted levels in the scientific community. See Cole and Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, 79 Perceptual and Motor Skills 99 (1994), where the authors noted, among other problems:

The fact that these tests are largely unfamiliar to most people and not well practiced may make it more difficult for people to perform them. As few as two miscues in performance can result in an individual being classified as impaired because of alcohol consumption when the problem may actually be the result of the unfamiliarity with the test.

And, in fact, it appears the NHTSA-funded researchers used methods that ensured improved reliability figures. Apparently, to reduce the number of borderline subjects (those with blood-alcohol levels of, say, .09 or .11 percent), most of the subjects received either excessive amounts of alcohol so that their BACs were elevated to .15 percent, or very small amounts so that they were below .05 percent.

In 1983, NHTSA conducted a study to determine the efficacy of the various field sobriety tests. Anderson et al., Field Evaluation of a Behavioral Test Battery for DWI (DOT HS-806-475, September 1983). The study found that "at present, the tests and procedures used vary between local agencies and officers" and that "for many of these tests, the relationship between performance and specific BAC levels has not been well documented." As a result of this and other studies, NHTSA now recommends only three field sobriety tests: walk-and-turn (walk-the-line), one-leg-stand, and nystagmus.

In 1986, another group of researchers tested the efficacy of the proposed standardized FSTs. The study, reported in Halperiri, Is the Driver Drunk? Oculomotor Sobriety Testing, 57 Journal of the American Optometer Association 654 (1986), involved testing the ability to determine whether a suspect's blood-alcohol level was above or below. 10 percent -- that is, whether he was "under the influence" in most states. The test, conducted under laboratory conditions, indicated that the walk-and-turn tests resulted in a correct assessment 75.1 percent of the time, the one-leg-stand 75.5 percent, and nystagmus 81.8 percent; when all three were given, a correct determination was arrived at in 83.4 percent of the cases. Put another way, these "improved" FSTs still identify roughly one-fourth of innocent DUI suspects as guilty -- and this presumes honest and accurate administration of the tests by an experienced officer under ideal laboratory conditions.

In 1987, many of the original researchers at the Southern California Research Institute who had been federally funded to come up with a standardized battery published findings of their research. The study concluded that FSTs do not accurately measure driving impairment. In an article entitled Sobriety Tests for the Presence of Drugs, 3(1) Alcohol, Drugs and Driving 25 (1987), researchers recognized that such tests are designed to determine balance, steadiness, and reaction time but concluded that a connection between these factors and driving ability "is not apparent since neither a steady stance nor simple movement time is essential to the safe operation of a motor vehicle." While conceding that field sobriety tests may indicate the presence of alcohol, the researchers found that they do not necessarily measure driving ability.

In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped 21 individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink to drive." Unknown to the officers, the blood-alcohol concentration of each of the 21 subjects was .00 percent. The results: 46 percent of the time the officers gave their opinion that the subject was too inebriated to drive. In other words, the FSTs were hardly more accurate at predicting intoxication than flipping a coin. Cole & Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, 79 Perceptual and Motor Skills 99 (1994).

 

 

There are many faults with the way a breath testing machine analyses the air that is introduced to it. These tests can be very unreliable and susceptible to attack by a California DUI defense lawyer who understands the weakness of a "Breathalyzer".

One of the major defects in many methods of blood-alcohol analysis is the failure to identify ethanol (also referred to as ethyl alcohol) to the exclusion of all other chemical compounds. To use the terminology of scientists, such methods are not specific for ethanol: They will detect other compounds as well, identifying any of them as "ethanol." Thus a client with other compounds in his blood or breath may have a high "blood-alcohol" reading with little or no ethanol in his body.

This problem of non-specificity is most noticeable in the use of infrared breath analyzing instruments (the most popular type of breath testing machines used today). Yet they are particularly susceptible to giving false readings due to non-specificity. The technical reason for this lack of specificity is that most breath machines are not designed to detect the molecule of ethyl alcohol (ethanol), but rather only a part of that molecule -- the methyl group. In other words, it is the methyl group in the ethyl alcohol compound that is absorbing the infrared light, resulting in the eventual blood-alcohol reading. Thus the machine will "detect" any chemical compound and identify it as ethyl alcohol if it contains a methyl group compound within its molecular structure. The "Breathalyzer" assumes that the methyl group is a part of an ethyl alcohol compound.

The simple fact is that there are numerous compounds that contain the methyl group.

• Isopropyl Alcohol
• Propane
• Butane
• Propylene
• Methane
• Ethane • Ethyl chloride
• Acetic Acid
• Butadiene
• Dimethylether
• Dimethylamine
• Dimethylhydrazine

Acetone and acetaldehyde, interestingly, can be found on the human breath. In fact, recent studies have found that over one hundred chemical compounds can be found on the breath at any given moment in time. More important, approximately 70 to 80 percent of these compounds contain methyl groups. And the infrared breath machine will detect each of these as "ethyl alcohol".

To make matters worse, the machine detects alcohol through "additive absorption." In other words, the more methyl groups the instrument detects by their absorbing the infrared energy, the higher will be the blood-alcohol reading. Thus all of the non-alcoholic compounds on the breath will have a cumulative effect--that is, the errors will be added one on top of another.
How prevalent are chemicals in the breath that can register on breath analyzing machines? Here are some common things that can give falsely high readings:
• Untreated Diabetics
• Persons on a Weight Reduction Diet
• Fasting
• Long-term smokers are more likely to have higher blood-alcohol readings due to a greater amount of acetaldehyde in the lungs.
• Alcoholics can have 5 to 55 times higher levels of acetaldehyde in there breath or blood than that in non-alcoholics.
• Inhaling Paint and Glue Fumes
• Inhaling Lacquer Fumes
• Swallowing Unleaded Gasoline
• Bread Products of various types

There have been a number of recognized studies on the existence of chemical compounds on the breath, all concluding that a wide variety of compounds exists, including compounds containing the methyl group.

One of the greatest sources of error in blood-alcohol testing is the consistently recurring fallacy that the individual tested is perfectly average in certain critical physiological traits. Put another way, obtaining an accurate blood-alcohol reading is completely dependent on the validity of a number of scientific assumptions. Unfortunately for the person being tested, these assumptions are usually incorrect: The person tested is rarely "average" in even one of these critical characteristics, let alone in all of them.

For example, all breath testing devices depend on the assumption that the partition ratio between alcohol in the exhaled breath and alcohol in the blood is 1 to 2100. In fact, the breath alcohol machine is designed to produce a reading based on that assumption; the accuracy of the reading is directly tied to the accuracy of the presumption. The actual ratio in any given individual can vary from 1:1300 to 1:3000, or even more widely. Thus a person with a true blood-alcohol level of .08 but a breath-to-blood ratio of 1:1700 would have a .10 reading on an "accurate" breath testing instrument.
Put simply, these machines do not test individuals. Rather, they test the average person over and over again, but using the subject's breath.

Yet another example of the assumption of "averageness" can be found in urinalysis. When a subject's urine is analyzed for blood-alcohol, a presumption exists that there are 1.3 parts of alcohol in the bladder's urine for every 1 part of alcohol in the blood. The actual ratio found in any given individual can vary greatly. And as the ratio is in error, so will be the final blood-alcohol reading.

Another example of this constant reliance on averages shows itself when the prosecutor offers evidence of retrograde extrapolation (assumption that blood-alcohol levels drop after you stop drinking). The blood-alcohol level at the time of testing is not relevant to the charge, of course and so the state will offer evidence to show what the level was when the defendant was driving. This is commonly done by computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or "burned off" in the time between driving and testing. But this requires two assumptions:

1. The blood-alcohol level was declining and the rate of elimination is known.
2. That the "burn-off" rate was .015 percent per hour.

How does the prosecution know that the defendant was eliminating (assuming he was eliminating) at that rate and not at .005 percent or .3 percent! Quite simply, the prosecution does not know: It merely assumes that the defendant eliminates at the average rate. And, of course, error in such an assumption translates into error in the extrapolation.

This ubiquitous "average person" in the DUI arena is not limited to chemical analysis. We even find him with the arresting officer in the field. When the officer administers the increasingly common "horizontal gaze nystagmus'' test as part of the battery of field sobriety tests, he operates on the assumption that the suspect is "Mr. Average." The officer has been trained to "read" at what angle the suspect's eyes begin jerking. A blood-alcohol reading can theoretically be obtained by subtracting the angle from 50; jerking at 35 degrees, for example, would mean the suspect has a blood-alcohol level of .15 percent. Where does the magic figure of 50 come from? The average person.
An alternative method of administering the nystagmus test is to "flunk" the person if jerking begins before 40 or 45 degrees. Why? Again, because the average person would theoretically have .10 or .05 percent alcohol in his blood at this point.
In either test, of course, we do not know what the individual's actual "baseline" is--that is, the angle at which his eyes would begin jerking if he were sober. In both cases, the individual is assumed to be physiologically identical to the theoretical "average" person.

California has two basic drunk driving laws, found in Vehicle Code section 23152, sections (a) and (b):
• 23152(a) It is a misdemeanor to drive under the influence of alcohol and/or drugs.
• 23152(b) It is a misdemeanor to drive with .08% or more of alcohol in your blood.
Note: In most cases, both the 23152(a) and (b) offenses will be charged. Even though there is only one act, the law says that a defendant charged with drinking and driving can be convicted of BOTH offenses -- but can only be punished for one (the punishments are identical). Vehicle Code section 23153 sets forth the "felony DUI" provisions where an injury results from the drunk driving, while Penal Code sections 191.5 and 192 describe the crime of "vehicular manslaughter" where there is a death.
Procedurally, you should be aware of certain legal rights you have -- rights which are commonly ignored by the police:
• There must be legally sufficient facts to constitute "probable cause" to stop, detain and arrest you.
• You should be advised that submission to field sobriety testing and portable field breath testing is not required by law.
• Once arrested, you must be advised of your constitutional rights -- the "Miranda" warning -- before any further questioning takes place.
• You must be given a choice of breath or blood testing; if you refuse, you must be advised of the legal consequences (the "implied consent" advisement).
• If a breath test is administered at the police station, since the breath sample is not saved, you must be given a chance to obtain a blood sample for later independent testing by your defense attorney.

To have any questions answered contact our office at (916) 447-7842

Information from CA DUI Legal Guide

Vehicle Code section 23612 sets forth the requirements of California's implied consent law, including the information which the officer is required to give a suspect who has been arrested for drunk driving. The language of the statute is mandatory, repeatedly stating that "the officer shall advise the person..."

Despite this, however, even a willful failure of the officer to properly advise a suspect of the implied consent provisions will not constitute grounds for suppression of the blood-alcohol test results: in short, Veh C § 23157 gives DUI arrestees "a right without a remedy." A defective advisement may, however, negate the usual sanctions for refusing to submit to chemical testing.

A commonly encountered situation occurs when the arresting officer fails to give an arrestee a choice of three tests, as required by Veh C § 23612. ("The person has the choice of whether the tests shall be of his or her blood, breath, or urine, and the officer shall advise the person that he or she has that choice.") Many officers find it too time-consuming to arrange for a blood sample to be withdrawn. The breath instrument, however, is located in the police station, is clean and easy to administer, and gives an instant result to facilitate the arrest and booking decision. Rather than advise the individual that he or she has such a choice, therefore, the officer finds it much more convenient to simply tell the suspect that he or she must take a breath test, omitting any mention of alternatives.

Unfortunately, even this obvious denial of a right specifically granted by statute does not constitute grounds for suppression of the test results. [People v. Brannon, 32 Cal.App.3d 971, 108 Cal.Rptr. 620 (5th Dist.1973)]. However, on cross-examination at trial, defense attorneys should be permitted to bring out the officer's noncompliance with the implied consent statute. This can serve to cast doubt on whether the officer complied with such other regulations and procedures as demonstrating the field sobriety tests or properly administering the breath test.

A defendant charged in a criminal complaint with drunk driving will also, in most jurisdictions, be facing parallel administrative or civil proceedings. These proceedings, usually requested by the driver, are held for the purpose of deciding whether to uphold a suspension or revocation of his driver's license, either for (1) refusing to take a blood-alcohol test, or (2) for taking one that reflects a blood-alcohol concentration of at least .08 percent. That suspension is usually imposed -- and the license confiscated -- by the arresting officer.

In effect, these latest examples of the double standard prevalent in the DUI field constitute a presumption of guilt. But, as with sobriety checkpoints, they are being upheld by the state courts. Due process, apparently, is afforded by the fact that the individual is given a temporary license, usually good for 30 days, and a written notice that he has the right to an administrative hearing on the issue if he so demands within a given period of time.

These relatively new summary suspensions are authorized by so-called implied consent laws, which are the direct result of the federal government's successful "carrot-and-stick" attempt to get the states to adopt relatively uniform laws on drunk driving. Incorporated into the Alcohol-Impaired Driving Countermeasures Act of 1991, the summary license suspension proceedings reflect the "new philosophy" imposed upon the states of implied consent laws. The previous implied consent laws of the various states were aimed solely at the driver refusing to submit to blood-alcohol testing, and were theoretically designed to discourage such lack of cooperation. The new federal approach, however, abandons that view and emphasizes instead the immediate removal of the driver from the highways -- and a circumvention of the cumbersome criminal justice system. In effect, it creates a dual-track system of punishment (although the courts, to avoid nagging double jeopardy issues, like to refer to the suspensions as "administrative sanctions" rather than punishment). As of January 1999, first-offense administrative license suspensions ranged from as low as seven days (Virginia) to as high as one year (Georgia); ninety days appeared to be the most common period.

Although the original implied consent statutes passed decades ago were subject to procedural infirmities, today's statutes have largely survived broad constitutional attacks. Thus, for example, the admissibility of a refusal to submit to chemical testing has been held not a violation of the Fifth Amendment. South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983). The Sixth Amendment right to counsel has been held not to apply to proceedings where there is no risk of imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 5. Ct. 2006, 32 L. Ed. 2d 520 (1972).

One recurrent problem with the new per se statutes stems from the common prosecutorial practice of charging a defendant with both the traditional and the per se offenses. (The phrase "per se" is also applied to the DMV's "administrative per se" (APS) driver's license suspension automatically imposed by the arresting officer where the driver has a .08% blood alcohol test result.) Although the defendant may not be punished for both offenses, many jurisdictions have permitted him to be convicted of both.

A California case, People v. Cosko, 152 Cal. App. 3d 54, 199 Cal. Rptr. 289 (1984), discusses the issue of whether the defendant could be convicted twice under separate subdivisions of the California Vehicle Code. The driver's argument was presented as follows:
Appellant contends that he was improperly convicted of two counts of driving under the influence, one for violating Vehicle Code section 23153, subdivision (a), and another for violating subdivision (b) of the same section based on one incident. We conclude that the Legislature added the 0.10 percent blood alcohol offense subdivision (subd. b) to facilitate proof of driving under the influence and that it did not intend a single driving under the influence incident to result in two driving under the influence convictions under Vehicle Code section 23153.

We are not concerned with the question of double charging, which is within the prosecutor's discretion, or with double punishment, which is clearly prohibited by Penal Code section 654. The question of double conviction, however, requires analysis of the legislative intent behind the addition of the 0.10 percent subdivision. [Id. at 290.]

The court concluded that the legislature did not intend that routine driving under the influence convictions would result in two convictions. The court based this opinion on an examination of the legislative history and the sentencing scheme of the statute. The court therefore held:
The general rule in the case of an improper combination of convictions is that the less serious offense is vacated while the more serious stands. (E.g., People v. Cole, supra, 31 Cal. 3d at p.582.) Since neither the under the influence offense nor the 0.10 percent offense is more serious than the other, the determination which conviction should stand is a discretionary matter. [Id. at 291-292.]

The Cosko decision was subsequently ordered by the California court not to be published. However, a later case was published. In People v. Duarte, 161 Cal. App. 3d 438 (1984), a California appellate court held that a defendant may be convicted under both statutes. However, he may only be punished for one; the judge must choose which one. Technically, punishment for the second conviction is temporarily stayed until after completion of sentence on the first -- at which time the stay is made permanent. Also, only one of the convictions may be used as a prior conviction for purposes of enhanced punishment on future DUI convictions.

A defendant's unusual driving is often the reason an officer pulls him or her over, hence this presumably unusual driving is often the first piece of evidence offered to the jury. On the off chance that the officer did not witness the defendant's driving, lay witnesses or circumstantial inference become part of the corpus delicti. This typically happens when there has been an accident and the officer arrives after the fact.

Most seasoned prosecutors would agree that the absolute most important evidence presented in a case is the testimony from the officer on the state of the defendant's driving. However, many defense lawyers hold the level of alcohol in the blood as the most vital piece of evidence, followed closely by the assessment of any field sobriety tests.

The types of evidence have been broken down into several groups in a manual developed by one of the most prominent prosecuting agencies in California. The categories in the order of importance are as follows: driving, appearance and demeanor, field sobriety tests (FSTs), and blood-alcohol test (or refusal). The manual dubs driving behavior as the most critical and states that FSTs, "which are not generally viewed by jurors as highly persuasive," are the least important.

Consider the following illustration of a particularly incriminating testimony by the officer to observe the defendant's driving. The officer first witnessed the defendant's car traveling at a very high speed. After the officer followed in pursuit, he/she observed the driver swerve across the lane lines 4 times. From there the officer could have witnessed the driver run through a stoplight, or disregard pedestrians attempting to cross at an intersection. When the officer turned on his flashing red lights, the defendant failed to pull over for nearly a quarter of a mile. When the defendant finally pulled to the side of the road, he/she parked the car at an irregular angle to the curb. The angle could possibly be a threat to traffic passing by.

With such condemnatory evidence to begin a case, how can the defense counsel respond? Naturally, each case is unique in itself. Accusing the officer of ulterior motives for condemning a defendant is not usually the best way to go about a defense. It is often most successful when the defense tackles each observation, one at a time, and produces a reasonable justification for the defendant's driving actions; the actions that caused the officer to misconstrue that the client was inebriated.

Speeding

Tackling first the issue of speeding, one method is to inquire how many speeding tickets the arresting officer has ever issued. How many of these tickets involved drunk driving? The answer to the latter question will most likely be "none". When an officer makes an arrest for driving while intoxicated, it is unusual that they also issue a speeding ticket. The series of questions brings up issues that will later evolve into an argument for the jury.

A. Why wasn't a speeding ticket issued if the defendant was actually speeding?
B. If speeding is a common trait among drunk drivers, why is it that the officer has never issued a ticket in any of his/her DUI arrests?
C. If speeding is not, in fact, a common trait among drunk drivers, why was the officer using it as evidence that the defendant was drunk in the first place?

For apparent reasons, California DUI lawyers should not provide the officer with a window of opportunity to further explain themselves during cross-examination. The topic should be discussed during argument if it has not been covered in redirect.

If the defendant did not have an accident, the issue of speeding could be used to his/her advantage, compelling the officer to acknowledge that driving above the normal speed limit requires better judgment. Speeding also requires faster coordination and better reflexes. With this in mind, speeding, itself, is evidence of sobriety. Therefore, rather than deny that the defendant was speeding, the fact that they were speeding at all can be used to their benefit. The attorney does not need to deny everything in this case. The defendant is not being charged for speeding, but for driving while intoxicated.

Blood samples obtained in drunk driving cases are generally -- but not always -- analyzed as whole blood (sometimes called "legal blood"). If the sample is withdrawn for medical purposes, however, the test will probably be done with serum (often referred to as "medical blood"). Serum is the clear yellowish fluid obtained from separating whole blood into its solid and liquid components (usually by centrifuging the sample); the liquid portion of the blood is called plasma, which is similar to serum. A third method involves precipitating proteins from the blood sample and centrifuging it; the result is a clear liquid called "supernatant," which is then analyzed.

Will analysis of serum/plasma or supernatant result in the same blood-alcohol readings as analysis of the whole blood? In a study entitled Distribution of Ethanol: Plasma to Whole Blood Ratios, Hodgson and Shajani, 18 Forensic Science journal 73 (1985), scientists attempted to determine the answer to this very question. The conclusion: Blood-alcohol concentrations in plasma were approximately 11 percent higher than that of whole blood, and those in supernatant samples were about 5 percent higher.

Thus, for example, evidence of a subject's blood-alcohol analysis indicating a .10 percent BAC may in fact reflect a true .09 percent if the plasma separation method of analysis was used. This has been confirmed in another study in which researchers concluded that a "person with an ethanol concentration of [.09 percent] in whole blood could have a reported concentration above [.10 percent] if either serum or plasma is analyzed." Winek & Carfagna, 11 Journal of Analytical Toxicology 267 (1987). Since many states permit the three types of "blood samples" to be used interchangeably in blood-alcohol analysis, counsel should certainly determine which type was actually used.

A simple technique for visually demonstrating the concept of testing blood that has aged and been subject to possible fermentation is to bring in a fresh vial of blood and compare it to the evidentiary sample withdrawn months earlier from the defendant. The fresh blood will be bright red, while the test sample will be nearly black.
For a study that found that serum-alcohol concentration can be up to 20 percent higher than blood-alcohol concentration, see Frajola, Blood Alcohol Testing in the Clinical Laboratories: Problems and Suggested Remedies, 39(3) Clinical Chemistry 377 (1993).
For legal case decisions, see Commonwealth v. Wanner, 605 A.2d 805 (Pa. Super. 1992), where the defendant appealed his DUI conviction on the grounds that the evidence of his blood-alcohol concentration was based on tests conducted on blood plasma rather than on whole blood, as required by statute. The appellate court agreed, citing the Bartolacci opinion; although that case addressed the use of blood serum rather than plasma, both involved tests on only portions of the blood. The court further found that tests on plasma resulted in BACs 15 to 20 percent higher than tests on whole blood.